01995444
12-05-2000
Nicholas K. Cannella, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Nicholas K. Cannella v. Department of Veterans Affairs
01995444
12-05-00
.
Nicholas K. Cannella,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995444
Agency Nos. 95-1577
95-2167
Hearing Nos. 210-99-6133X et al.
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission for a determination
concerning the settlement agreement that resolved two EEO complaints he
filed against the agency.<1> Accordingly, the appeal is accepted in
accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the complainant established that he was
coerced into entering into a settlement agreement with the agency.
BACKGROUND
The record indicates that on February 10, 1995, complainant, a doctor
employed by the agency, filed a discrimination complaint (Complaint
No. 95-1577) against the agency. On July 21, 1995, he filed an additional
14 complaints, which were all consolidated for investigation (Complainant
No. 95-2167). An investigation was conducted from November 11 - 18,
1996 and again from December 16 - 20, 1996. Following the investigation,
complainant was provided a copy of the investigative file and notified
of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant did request a hearing.
On May 6, 1999, the parties, during a deposition, reached a settlement.
Complainant's attorney, E-1, read the settlement agreement into the
record. He indicated that complainant would withdraw, with prejudice,
his 14 EEO complaints.<2> In exchange, the agency agreed that it would
�stand by� the affidavit of an agency official, contained in the file,
averring that there was nothing of a derogatory nature in complainant's
official personnel file that would preclude him from seeking employment
with another agency facility.
At that point, E-1 asked the complainant if this was his
agreement. Complainant stated �that's [sic] my agreement with my
lawyer . . . and my wife . . . here and myself.� May 6, 1999 Report of
Proceedings at page 4. The agency's representative also indicated that
E-1's recitation reflected the agency's understanding of the agreement.
A recess was taken and the parties contacted the AJ. E-1 informed the
AJ that a settlement had been reached. After he outlined the terms of
the agreement to the AJ, E-1 stated that �[w]e have already put this
on the record and [complainant] has already acknowledged that it is
his agreement.� Id. at 6. After the agency representative spoke,
the complainant was again asked if what he had heard reflected his
understanding of the agreement. Complainant answered �that is my
understanding as of today.� Id. at 7.
Later that day, however, complainant informed the AJ that, after obtaining
additional counseling, he had decided to proceed with the processing
of his complainants. Complainant maintained that the settlement
agreement was a proposal and did not protect him from future acts of
reprisal. Finally, complainant stated that he did not believe he had
received �full and adequate�representation.
Complainant asked that the AJ reschedule the hearing and allow him
30 days to obtain a new attorney. On May 11, 1999, the AJ informed
complainant that the May 6, 1999 settlement agreement was not a �proposed
settlement,� but was a �total and complete and final settlement.� Among
other matters, complainant was informed that the pre-hearing conference
and hearing had been canceled.<3>
On June 10, 1999, complainant's new attorney, E-2, filed a motion seeking
to vacate the AJ's Order directing the withdrawal of complainant's cases.
For the first time, the argument was made that the settlement agreement
had been entered into under duress. Specifically, E-2 maintained that
�the apparent settlement in this case, however, is void because it was
entered under duress and, therefore, does not constitute a voluntary
and knowing settlement.� E-2 indicated that complainant, during the
pre-hearing process, offered transcripts of conversations between
complainant and other employees. These transcripts were created from
tape recordings made by complainant at his workplace. According to E-2,
at various times, on May 5, 1999, the agency's representative, B-1,
�threatened the complainant, his wife, his attorney, and a complainant
witness with criminal prosecution for alleged eavesdropping and perjury.�
E-2 argued that �this was done in an attempt to compel the complainant to
settle the case. As a result of this coercion by the agency's attorney,
the complainant reluctantly agreed to the terms proposed by the agency's
attorney.�<4>
In his June 21, 1999 response, the AJ denied complainant's motion.
The AJ stated that �[n]otwithstanding arguments of the complainant's
present attorney, there is no evidence of threats, duress, coercion, or
undue influence imposed by the agency in the settlement of these cases.
Significantly, the complainant was represented by an attorney at the
time of the settlement agreement.� The AJ, in a footnote, also indicated
that:
In addition, it is noted that, during a telephonic pre-hearing
conference, comment with regard to possible criminal prosecution for
alleged eavesdropping in connection with the complainant tape recording
conversations at the Veterans Administration facility were mentioned by
the agency's attorney solely in the context of alerting the complainant
and others against potential self-incrimination later.
Upon receipt of the AJ's June 21, 1999 response, complainant, through
his attorney, filed this appeal with the Commission.
ANALYSIS AND FINDINGS
At the outset, we note that complainant has not complied with the
procedures for contesting a settlement agreement that are set forth at
29 C.F.R. � 1614. 504(a). There is no provision in our regulations for
the complainant to file an appeal directly from the AJ's June 21, 1999
response. Because the agency has had an opportunity to fully address
complainant's contentions, both before the AJ and now on appeal to this
Commission, we find that no purpose would be served by remanding this
matter for processing by the agency. We will, therefore, address the
merits of complainant's claim.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996).
Because the Commission favors the voluntary resolution of discrimination
complaints, settlement agreements are not lightly set aside. See e.g.,
Rogers v. General Electric Co., 781 F.2d 452 (5th Cir. 1986). However,
if coercion, misrepresentation, misinterpretation, or mistake occur
during the formation of the contract, assent to the agreement is
impossible, and the Commission will find the contract void. See Shuman
v. Department of the Navy, EEOC Request No. 05900744 (July 20, 1990).
This Commission examines coercion claims with much scrutiny. The party
raising the defense of coercion must show that there was an improper
threat of sufficient gravity to induce assent to the agreement and that
the assent was in fact induced by the threat. Such a threat may be
expressed, implied or inferred from words or conduct, and must convey an
intention to cause harm or loss. A complainant's bare assertions will
not justify a finding of coercion. Lenihan v. Department of the Navy,
EEOC Request No. 05960605 (December 5, 1995).
In the instant case, the Commission finds that the record of the May 6,
1999 proceedings does not support a finding that complainant was coerced
into settling his EEO complaints. On at least two occasions, he was
asked if he agreed with the provisions of the settlement, as recited by
his attorney. On both occasions, he answered in the affirmative. We
also note that in his May 6, 1999 letter to the AJ, complainant never
mentioned that he felt he was coerced into agreeing to the settlement.
At that time, complainant only discussed his dissatisfaction with the
agreement. A settlement agreement made in good faith and otherwise
valid will not be set aside simply because it appears that one of the
parties made a bad bargain. See Miller v. Department of the Treasury,
EEOC Request No. 05960622 (December 5, 1997).
Furthermore, we also note that during the depositions of complainant's
wife and two other witnesses, the topic of complainant's tape
recordings was raised. Although the parties only submitted excerpts
of the deposition transcripts, we find no persuasive evidence to
support complainant's contention on appeal that threats of criminal
prosecution, pertaining to complainant, his wife, and E-1, caused
E-1 to become more concerned about a possible conflict of interest
than complainant's interest. Based on our review of the excerpts,
B-1 appears to have raised the matter of the tape recordings in order
to rebut testimony that complainant was ethical, followed the law, had
good character, and was a good doctor. Although reasonable persons may
question the relevance of this line of inquiry, we are not persuaded
that B-1 threatened the complainant in any way. We note in this regard
that whether complainant settled his EEO complaints or not, the decision
concerning possible criminal prosecution did not rest with B-1.<5>
Notwithstanding the above, the Commission finds that the settlement
agreement is void for lack of consideration. Provided that the
parties to an agreement incur some legal detriment, that is, commit
themselves to do something that they were not already obligated to do,
a settlement agreement will not be set aside for lack of consideration.
Brionez v. United States Postal Service, EEOC Request No. 05960492
(October 14, 1999); Morita v. Dept. of the Air Force, EEOC Request
No. 05960450 (December 12, 1997). Here, management agreed to be bound
by the terms of an affidavit that was already contained in the record.
According to the affidavit, there was nothing of a derogatory nature in
complainant's official personnel file that would preclude him from seeking
employment with another agency facility. By way of clarification, we
note that the settlement agreement did not require that the agency remove
any derogatory information from complainant's official personnel file.
The affidavit of the agency official merely recited a set of facts
that anyone could have ascertained by examining complainant's file.
Whether the agency official examined complainant's personnel file or not,
the facts set forth in her affidavit would still have been the same.
The promise of the agency to be bound by the affidavit did not provide
complainant with anything; therefore, he did not receive any consideration
in exchange for the withdrawal of his EEO complaints.
CONCLUSION
Accordingly, the agency decision is REVERSED and REMANDED in accordance
with the order below.
ORDER
Complaint Nos. 95-1517 and 95-2167 are hereby reinstated from the point
where processing ceased. These complaints will be remanded to the EEOC's
Chicago District Office for scheduling of a hearing in an expeditious
manner. The agency is directed to submit copies of these complaint files
to the Hearings Unit of the Chicago District Office within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint files have been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. � 1614.109 and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____12-05-00_________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________
Date
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant claimed, in pertinent part, that he was discriminated against
when, in September 1994, he was detailed from Fayetteville, Arkansas to
the Rockford, Illinois VA Clinic; C-1, a nurse, exhibited unprofessional
behavior towards him; C-2, a nurse, exhibited unprofessional behavior
towards him; C-3 exhibited unprofessional behavior toward him; he was
permanently reassigned from the Rockford Clinic to the North Chicago
VAMC in May 1995; he was notified, on May 22, 1995, that C-1 and C-2 had
filed a formal EEO complaint against him; and on February 10, 1995, C-1,
during a discussion, became argumentative and confrontational toward
him and ordered him into his office.
3The AJ, on May 11, 1999, executed an order directing that complainant's
cases be withdrawn with prejudice as provided in the settlement
agreement.
4B-1, we note, stated that the idea for the settlement proposal was made
by E-1, not him.
5The record indicates that, during a deposition, E-1 asked for a recess
in order for his client to consult with an Illinois attorney regarding
Illinois' eavesdropping law. According to B-1, on May 6, 1999, E-1
informed him that there may have been a violation of Illinois law.