01984650
11-16-1999
Maria P. Shockley, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.
Maria P. Shockley, )
Complainant, )
)
v. ) Appeal No. 01984650
) Agency No. E96-13
William S. Cohen, ) E97-06
Secretary, )
Department of Defense, )
(Defense Contract Audit Agency), )
Agency. )
___________________________________)
DECISION
Complainant filed an appeal with this Commission from the agency's
May 6, 1998 decision refusing to reinstate complainant's settled EEO
complaints.<1> Complainant filed two EEO complaints which were settled in
an agreement entered into by the parties on November 14, 1997. Complainant
subsequently alleged that she was coerced into settling the agreement.
In the May 6, 1998 decision the agency found that complainant was not
coerced into entering the settlement agreement and that complainant
failed to timely raise the allegation of coercion.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. The EEO complaints which were settled in the
November 14, 1997 agreement were both based in part on complainant's
claim that the agency discriminated against complainant on the basis of
age in violation of the Age Discrimination in Employment Act (ADEA).
The Older Workers Benefit Protection Act (OWBPA) amended the ADEA,
effective October 16, 1990, and provides the minimum requirements for
waiver of ADEA claims. Juhola v. Department of the Army, EEOC Appeal
No. 01934032 (June 30, 1994).
To meet the standards of the OWBPA, a waiver is not considered knowing
and voluntary unless, at a minimum: (1) the waiver is clearly written
from the viewpoint of the complainant; (2) the waiver specifically refers
to rights or claims under the ADEA; (3) the complainant does not waive
rights or claims arising following execution of the waiver; (4) valuable
consideration is given in exchange for the waiver; (5) the complainant
is advised in writing to consult with an attorney prior to executing the
agreement; and (6) the complainant is given a "reasonable" period of time
in which to consider the agreement. Id. (citing 29 U.S.C. �626(f)(2)).
In the present case the OWBPA provisions are applicable because the
settlement agreement purported to resolve complainant's allegations of
age discrimination. The November 14, 1997 settlement agreement does not
specifically state that complainant is waiving her rights to claims under
the ADEA. Therefore, the Commission finds that complainant's decision to
enter the settlement agreement of November 14, 1997 was neither knowing
nor voluntary under the OWBPA. Accordingly, we find that the agency
improperly refused to reinstate complainant's complaints.
The Commission also rejects the agency's finding that complainant did not
timely raise the coercion argument. The 30 day time deadline referred
to by the agency refers to breach allegations. 29 C.F.R. �1614.504(a).
The instant matter is not a breach allegation. Furthermore, the agency
found that complainant first raised the breach allegation on March
14, 1998. Even if the March 14, 1998 date is correct (a matter we need
not decide), we find that complainant's failure to raise the matter of
coercion until approximately four months after entering the settlement
agreement does not constitute laches or unduly prejudice the agency.
The agency's decision refusing to reinstate the purportedly settled
complaints is REVERSED and we REMAND the complaints to the agency and
for further processing in accordance with this decision and applicable
regulations.
ORDER
Within 30 days of the date this decision becomes final the agency
shall issue a letter to complainant informing her that the agency is
reinstating her complaints from the point processing ceased. A copy
of the agency's letter to complainant must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file
a civil action. Both the request and the civil action must be filed
within the time limits as stated in the paragraph above ("Right to File
A Civil Action").
FOR THE COMMISSION:
November 16, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATION OF MAILING
For timeliness purposes, the Commission will presume that this letter
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________________
__________________________1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all Federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.