[Redacted], Albert W., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2021003560 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Albert W.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2021003560 Agency No. EPA 2020-066-R05 Agency No. EPA 2020-036-R05 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated September 10, 2021, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Analyst, GS-13, at the Agency’s Region 5 Water Division in Chicago, Illinois. Believing that the Agency subjected him to unlawful discrimination, Complainant initiated the EEO complaint process. On February 17, 2021, Complainant requested a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). On March 12, 2021, the parties entered into a settlement agreement. The AJ subsequently dismissed the complaint on the ground that Complainant’s claims were resolved. The settlement agreement stated that Complainant “voluntarily” entered into the Agreement after “thoroughly” reviewing its provisions. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021003560 2 In addition, the Agreement provided in pertinent part, that: (1) The . . . definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into the Agreement and are controlling. (2) Should any provision of this Settlement Agreement be declared or be determined by any court to be illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be affected, and the illegal part, term, or provision shall be deemed not to be part of this Settlement Agreement. * * * (3) In the event of a dispute regarding a breach of the Agreement, the parties shall attempt to resolve the dispute cooperatively prior to filing any complaint, appeal, sanctions, grievance or any other legal or administrative action. If either party believes that a breach of any provision of this Agreement has occurred, that party will be required to first contact the other party within 30 calendar days of the alleged breach and give it an opportunity to resolve the alleged breach prior to filing an action, complaint, grievance or other legal action. If the dispute is not resolved within 30 days, the parties will enter informal mediation that will be conducted by a third party neutral. (4) If Complainant has followed the procedures set forth in paragraph [3] (above), and he still believes that the Agency has not complied with the terms of this Agreement, in accordance with the procedures found in 29 C.F.R. §1614.504, Complainant may request that the terms be specifically implemented. Any such request must be made in writing within thirty (30) calendar days after the failed mediation and must be forwarded to the Director, Office of Civil Rights, U.S. Environmental Protection Agency, Ariel Rios North Building, 1200 Pennsylvania Avenue, N.W., Mail Code: 1201A, Washington, DC 20460, with an explanation of why Complainant believes that the Agreement has not been carried out by the Agency. The Agreement required Complainant to: (5) Within seven (7) calendar days of receipt of payment from the Agency . . . withdraw the EEO Complaint 440-2021-00182X, and any and all other pending formal or informal complaints, grievances, appeals, claims, or other legal or administrative actions that he filed or could have filed against the Agency, its officers, employees, and representatives, in their official or unofficial capacities, concerning any incidents, personnel actions or terms or conditions of employment, acts, omissions, or statements arising out of any aspect of Complainant’s employment with the Agency as of the execution date of this 2021003560 3 agreement. In doing so, Complainant acknowledges that all claims in all forums will be dismissed with prejudice. * * * (6) [Complainant] acknowledges that he has read and understood each of the provisions of this Agreement and that he voluntarily enters into the terms and conditions with full knowledge of the consequences. Further, Complainant acknowledges and agrees that he was advised to consult with a lawyer before signing the Agreement and thereafter had ample time and opportunity to consult with an attorney before signing the Agreement. Complainant acknowledges and agrees that he was informed that he is allowed twenty-one (21) days to consider the Agreement by law and that he had twenty-one (21) days to consider the matter before signing the Agreement. Complainant acknowledges and agrees that he was informed that he has seven (7) days from the date he signs the Agreement to revoke the Agreement, and its terms do not become effective until the expiration of the seven-day period. * * * The Agreement required the Agency to: (7) Pay Complainant a sum (non-wage) amount of $25,000.00, and . . . pay to Gilbert Employment Law, P.C., an amount of $15,000 in attorney’s fees. In order to receive payment, Complainant] and Gilbert Employment Law, P.C., must submit completed ACH Vendor/Miscellaneous Payment Enrollment forms and IRS Form W9 to Agency Counsel. The Agency agrees to submit the appropriate paperwork to initiate this payment within ninety (90) days of [Agency Counsel’s] receipt of the completed ACH Vendor/Miscellaneous Payment Enrollment form and IRS Form W9 from Complainant and Gilbert Employment Law, P.C. Payment of this sum represents a full and final settlement of any and all claims for damages by Complainant related to the above-cited complaint of discrimination and any other appeal, complaint, cause of action, whether known or unknown, grievance, or civil action filed by Complainant against EPA pending at effective date of this agreement. Complainant agrees that he is solely responsible for any tax consequences resulting from this payment, not the Agency. By letter to the Agency dated June 5, 2021, Complainant alleged that the Agency was in breach of the Agreement. Specifically, Complainant argued that the Agency breached provisions 5 and 7. In addition, Complainant argued that he was under duress or coerced to enter into the Agreement. Additionally, Complainant challenged the validity of the Agreement by arguing that the Agency placed timeframes in provisions 3 and 4 that denied him certain rights under 29 C.F.R. § 1614.504. 2021003560 4 Finally, in an email dated June 25, 2021, Complainant argued that the Agency failed to comply with the Age Discrimination in Employment Act (ADEA) because the Agreement did not reference the ADEA within provision 6 of the Agreement. In its September 10, 2021 FAD, the Agency dismissed Complainant’s breach allegations, finding that it complied with its obligations under the Agreement. The instant appeal followed. Complainant submitted a brief on appeal, and Agency submitted a response brief. ANALYSIS 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. Dep’t of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract’s construction. Eggleston v. Dep’t of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984). Believing that provision 5 gave him the exclusive right to withdraw his complaint after receiving a settlement payment, Complainant argued that the Agency breached provision 5 by not issuing a payment to him prior to the dismissal of his case. Here, we find the settlement agreement is plain and unambiguous on its face with respect to the rights and obligations as provided in provision 5. Provision 5 gives Complainant the right to withdraw his complaint after receiving a payment. Nowhere in the provision does it state that Complainant has the authority to determine when his case could be dismissed by the AJ. When Complainant emailed the AJ to inquire if the AJ dismissed his complaint in error, the AJ informed Complainant that the complaint was not dismissed in error because Complainant executed a settlement agreement to resolve the matter. The AJ correctly informed Complainant that the Agency continued to have an obligation to pay him under the terms of the settlement agreement. We note that on appeal, Complainant argues that the Agency engaged in ex parte communications with the AJ and acted in bad faith. However, Complainant has not provided evidence that the Agency communicated any information that was outside of procedural matters to the AJ. 2021003560 5 Complainant argues that the Agency breached provision 7 by paying his attorney $40,000.00, when the Agreement provided for an amount of $15,000.00 in attorney’s fees. In its FAD, the Agency determined that it had not breached provision 7 because it did not pay Complainant’s attorney $40,000.00. The Agency submitted an email correspondence between Agency Counsel and Complainant’s attorney to support its finding. By an email dated June 10, 2021, Complainant’s attorney informed Agency counsel that there was some confusion regarding a $40,000.00 that he had received, but after consulting his finance team he determined that the $40,000.00 that he received was “from another source” not the Agency. After considering the evidence, we find that Complainant has not proven that the Agency breached provision 7. Complainant argues that he was under duress or coerced to enter into the Agreement, when on March 8, 2021 the Agency threatened to proceed with a removal action against him if he did not sign the Agreement. In Natalie F. v the United States Postal Service., EEOC Request No. 0120180617 (April 20, 2018) the Commission held that 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, 1997). While Complainant raised the threat of his removal as a source of his duress, we find, based on a preponderance of the evidence, that this was not an improper threat because the Agency was in the process of proposing his removal prior to the settlement negotiation. See Betts v. Equal Employment Opportunity Commission, EEOC Appeal No. 0120091969 (Oct. 14, 2009) (while the agency allegedly starkly told the complainant in mediation that if she did not sign the settlement agreement her termination letter would be placed in her official personnel file which would adversely impact her job prospects, especially with the federal government, the agency's warning was sufficiently grounded in truth not to be unreasonable. While this was unpleasant, it was not coercion). In addition, Complainant was presented with a choice and an opportunity to consult his attorney, as his attorney was present during the settlement discussions, and both he and his attorney signed the Agreement. Complainant was free to walk away from the negotiation and challenge the forthcoming proposed removal or seek to negotiate at a later date. He chose to settle his EEO complaint. Complainant challenges the validity of the Agreement by arguing that the Agency placed steps and timeframes in provisions 3 and 4 that denied him certain rights under 29 C.F.R. § 1614.504. Provision 3 provides that if Complainant believes that a breach of any provision has occurred, he is required to first contact the Agency within 30 calendar days of noncompliance to give the Agency an opportunity to resolve the breach. Provision 3 contradicts 29 C.F.R. § 1614.504, which states that a complainant is required to notify the EEO Director within 30 days of noncompliance. In his appeal brief, Complainant points out that provisions 3 and 4 state that noncompliance issues should be resolved by a third part mediator, which also contradicts 29 C.F.R. § 1614.504. 29 C.F.R. § 1614.504 gives Complainant the right to appeal noncompliance issues to the Commission. We find that 29 C.F.R. § 1614.504 is controlling law, and provisions 3 and 4 are invalid. 2021003560 6 However, their invalidity does not render the Agreement void since provision 1 states that statutory law (such as 29 C.F.R. § 1614.504) is controlling law and is incorporated into the Agreement. Finally, in an email dated June 25, 2021, Complainant argued that the Agency failed to comply with the ADEA because the Agreement did not reference the ADEA within provision 6 of the Agreement. Complainant indicated that he mistakenly waived his ADEA rights due to the Agency’s misrepresentation. Despite the argument made otherwise, the underlying complaint does not raise any allegations of age discrimination. On the formal complaint form Complainant did not check the box indicating he was alleging age discrimination, he explicitly alleged retaliation and race discrimination. Furthermore, there is no evidence that Complainant was denied the opportunity to consult with his attorney or the time to review the Agreement prior to execution. Therefore, we find that Complainant has failed to prove that misrepresentation or mistake occurred. CONCLUSION Accordingly, the Agency’s final decision is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). 2021003560 7 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2021003560 8 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 21, 2021 Date