0120113841
01-20-2012
Robert F. Weldon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Robert F. Weldon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120113841
Agency No. 4C-080-0060-11
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD)
decision dated July 15, 2011, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Postmaster at the Agency’s Manahawkin Post Office in Manahawkin,
New Jersey. He filed a formal complaint dated June 22, 2011, which the
Agency defined as alleging whether he was discriminated against based on
his sex (male), age (58), and reprisal for prior protected EEO activity
under Title VII and the ADEA when:
1. he was demoted effective March 26, 2011, pursuant to a settlement
agreement which the parties entered into on March 10, 2011, that is
invalid; and
2. his request to speak to the District Manager about his case was denied
on April 10, 2011.1
The Agency dismissed issue 1 for stating the same claim that was pending
before or had been decided by the Agency. 29 C.F.R. § 1614.107(a)(1).
It found that issue 2 failed to state a claim because Complainant was
not aggrieved. Id.
On or about February 3, 2011, Complainant was placed on Emergency
Suspension, based on a subordinate female supervisor’s allegations
(Subordinate 1) that he sexually harassed her. Complainant stayed
on Emergency Suspension for about five weeks. On February 18, 2011,
he contacted an EEO counselor, and then completed a “Pre-Complaint
Counseling” (intake) form alleging discrimination based on his sex
and age when he was suspended. The Agency assigned this case number
4C-080-0050-11.
In a sworn statement, Complainant wrote that on March 10, 2011, he was
unexpectedly called into a meeting with his first line supervisor and
the Human Resources Manager. His non-attorney representative also came.
Complainant wrote that the Agency presented him with a written settlement
offer. It provided, in relevant part, that:
1. This Agreement encompasses all claims…against the Postal Service in
any EEO complaint, Merit Systems Protection Board (MSPB) appeal, other
administrative action, or federal or state court action that are based on
events that occurred up to and including the date of…this Agreement..;
2. With the exceptions listed below, the Postal Service agrees to refrain
from issuing any discipline to Mr. Weldon as a result of the investigation
of January/February of 2011 concerning his conduct [toward Subordinate 1];
3. Mr. Weldon agrees to accept a reduction in pay and grade to the
position of Postmaster, Manahawkin NJ EAS-21, with a salary of $89,009..;
4. Mr. Weldon also agrees to not apply for a higher level promotion for
a period of two years..;
5. Mr. Weldon also understands and agrees that if any conduct related
discipline is issued against him during the two years after execution of
this Agreement, Mr. Weldon agrees to waive any and all claim(s) he may
have against the Postal Service before the MSPB, other administrative
forum, or federal or state court action in regard to any corrective or
disciplinary action taken against him by the Postal Service;2
6. …Mr. Weldon acknowledges and affirms that he is able to understand
this Agreement in it’s entirely; that he has executed this Agreement
willingly and freely, and without coercion, threat or duress..;
7. Mr. Weldon acknowledges that he has been advised of his rights under
the ADEA and that he understands and agrees that:
8.
• this settlement agreement does not waive any ADEA rights or claims
that may arise after the date on which the agreement is signed; …
• he has had adequate time in which to consider the decision to settle
any claim that he may have, including any current EEOC claim, and
• he has been advised of his right to seek advice of an attorney prior
to signing this agreement.
Complainant wrote that at the settlement meeting he was told he faced
potential removal, demotion to a craft position, and extended leave
without pay. He wrote that the meeting lasted almost three hours, and
because of this and medication he was taking, he signed the offer (now
settlement agreement) because he felt he had no other options. In his
sworn statement, Complainant wrote that at the meeting he asked for a
week, then four days, than one day to consider the settlement offer,
but was told it must be signed now/today. He indicated that he was not
separately advised prior to his signing that he had the right to seek
assistance of an attorney. He wrote that on March 10, 2011, immediately
after the meeting, he called his first line supervisor requesting to
revoke the settlement agreement, and was denied. He wrote that the next
day he attempted to contact the Human Resources Manager about revoking the
settlement agreement, left a message, and this request was later denied.
Much of this account was corroborated in a letter by Complainant’s
non-attorney representative.
On March 14, 2011, Complainant contacted an EEO counselor seeking to
have the settlement agreement revoked and his EEO case reinstated.
On appeal Complainant argues that the settlement agreement is invalid
because the Agency violated the Older Workers Benefits Protection Act
(OWBPA). He argues that the OWBPA applies because the matter settled
involved a claim of age discrimination, and the Agency violated the OWBPA
because it did not give him a reasonable period of time to consider
the settlement agreement and he was not advised in writing prior to
the signing to consult an attorney. Complainant also alleges that the
Agency did not define claims that were part of his complaint, i.e.,
omitted some of his claims.
In opposition to the appeal, the Agency requests that the Commission
affirm the FAD. It generally argues that Complainant offered nothing
on appeal that warrants disturbing the Agency’s position.
ANALYSIS AND FINDINGS
The Older Workers' Benefit Protection Act ( OWBPA) which amended the
ADEA effective October 16, 1990, provides that a waiver of ADEA claims
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 wavier; (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. Juhola v. Department of the Army, EEOC Appeal No. 01934032
(June 30 1994) (citing 29 U.S.C § 626(f)(2)).
The OWBPA applies because the settlement agreement waived an ADEA claim.
In applying the OWBPA, the Commission ruled that less than an hour is an
unreasonable period of time in which to consider a settlement agreement.
See Love v. Department of Defense (DOD-Office of Dependents Education),
EEOC Appeal No. 01952642 (Oct. 18, 1996). In another case, the Commission
ruled that where a complainant was not represented by an attorney and was
emotionally distraught shortly before signing the settlement agreement,
a 24 hour period to sign the settlement agreement was not a reasonable
period of time. Woychik-Brown v. Department of Agriculture, EEOC Request
No. 05960768 (July 16, 1999). The Agency unexpectedly called Complainant
into a meeting where it presented him with a written settlement offer,
he did not have an attorney present, he asked for a week, then four
days, then a day to consider the offer and the Agency told him he must
sign the offer now/today to have an agreement, and immediately after
signing the settlement agreement Complainant asked to have it rescinded.
The Agency does not contest this. We find that given these circumstances,
the evidence shows that the Agency did not give Complainant a reasonable
amount of time to consider the settlement agreement. The settlement
agreement is invalid because it does not meet a requirement of the OWBPA.3
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Applying this standard, we find that issue 2 fails to state a claim.
Complainant was not aggrieved by the denial of a meeting with his District
Manager to discuss his case. There were other forums to raise these
matters, such as the EEO process, and the District Manager was not
required to discuss the case with him. Issue 2 is DISMISSED.
Complainant argues that the Agency ignored issues he made in his formal
complaint, which he writes includes his prior intakes, as well as an
amendment to the complaint he made in an intake.4 While we do not assert
we are defining all these claims, we will address most of the omitted
primary ones.
Specifically, Complainant claims that the investigation which led to
his emergency suspension was flawed in various ways both in substance
and conduct/procedure. He also alleges that Subordinate 1 was accused of
sexually harassing others and received better treatment, and gives various
examples. Given Complainant’s claim that the emergency suspension
was discriminatory, we find the allegations about the investigation
and Subordinate 1 do not state an independent claim of discrimination.
Rather, they are offered as evidence in support of Complainant’s claim
that he was discriminated against when he was placed on an emergency
suspension. The above issues regarding the investigation and disparate
treatment of Subordinate 1 are DISMISSED, but they may be used as evidence
in support of Complainant’s claim of discrimination. Complainant also
makes claims about what occurred during the settlement negotiations
of March 10, 2011, including being forced to take a demotion on March
10, 2011. These issues were appropriately analyzed here as whether
the settlement agreement was valid, and this matter has been addressed.
These issues do not state an independent claim of discrimination and are
DISMISSED. See Millea v. Department of Veteran Affairs, EEOC Request
No. 05980235 (May 21, 1998). Likewise, Complainant’s claim that a
May 11, 2011, EEO redress meeting to resolve his EEO claims broke down
and he was not made a resolution offer is DISMISSED. Id.
Because the March 10, 2011 settlement agreement is invalid, it is hereby
rescinded. The parties are returned to the status quo ante immediately
prior to the signing of the settlement agreement. The Agency shall
resume processing of informal EEO case 4C-080-0050-11 from the point
processing ceased. The Agency shall ask Complainant to review this
appellate decision and give him an opportunity to identify any claims in
EEO case 4C-080-0060-11 which it did not define and which this decision
may have missed. If Complainant identifies any additional claims,
the Agency shall either accept or dismiss them for investigation.
The FAD is AFFIRMED in part and REVERSED in part. Some issues which
the Agency failed to define were captured in this decision and DISMISSED.
ORDER
The March 10, 2011 settlement agreement is rescinded, and the parties
are returned to the status quo ante immediately prior to the signing of
the settlement agreement. The Agency shall resume processing informal
EEO case 4C-080-0050-11 from the point processing ceased. The Agency
shall ask Complainant to review this appellate decision and identify any
claims not defined by the Agency in EEO complaint 4C-080-0060-11 and which
this decision may have missed. If Complainant identifies any additional
claims, the Agency shall either accept or dismiss them for investigation.
The Agency shall define and accept or dismiss the claims in the above
cases within 45 calendar days after this decision becomes final, unless
Complainant grants an extension, and consolidate these cases.
A copy of the Agency’s letter defining the above complaints and
accepting and/or dismissing claims therein must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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) (1994 & Supp. IV 1999).
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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 20, 2012
__________________
Date
1 This definition tracks the Agency’s definition the complaint, with
detail added.
2 This provision is a prospective waiver (waiving claims for alleged
discrimination which may arise after the waiver). The Commission has
long held that prospective waivers are void for being against public
policy. Vigil v. Department of the Army, EEOC Request No. 05960521
(June 22, 1998). In cases where there is a prospective waiver only the
prospective waiver provision is void, not the entire settlement agreement.
3 Because of this finding, we need not address Complainant’s other
arguments for why the settlement agreement does not comply with the OWBPA.
We note, however, that term 5 of the settlement agreement, as numbered
above, violates the OWBPA requirement prohibiting prospective waivers.
4 The intakes originated from EEO contact dates of March 14, 2011;
April 6, 2011; May 10, 2011; and June 24, 2011.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120113841
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113841