01993533
05-02-2000
Sherry L. Livingston, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Sherry L. Livingston, )
Complainant, )
)
v. ) Appeal No. 01993533
) Agency No. R3-12-06
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 18, 1999, finding that
it did not coerce the complainant into executing their January 29,
1998 settlement agreement.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
On January 29, 1998 the agency and complainant entered into a settlement
agreement which provided, in pertinent part, that:
(4) The complainant specifically agrees to withdraw, with prejudice,
any and all discrimination complaints that she has filed or initiated
prior to executing this Settlement Agreement and agrees that this
Settlement Agreement constitutes the cancellation of those complaints.
She further agrees not to file any new complaints, grievances or other
type of complaint/ appeal against the agency or any of its officers or
employees which relate in any [way] to the facts and circumstances which
form the basis of the above-referenced complaint.
(6) The complainant agrees and affirms by her signature on this informal
resolution and the terms and provisions of the resolution were explained
to her, that she read and understands the terms and provisions, and
that she enters into this agreement voluntarily and under no duress.
The parties hereto agree that they are both bound by said terms and
provisions.
As part of her settlement agreement with the agency, the complainant
agreed to withdraw her claims of racial harassment and racial
discrimination. By letter to the agency dated October 22, 1998,
complainant requested that the agency revive her claims of racial
harassment and racial discrimination because agency officials and her
EEO counselor coerced her into withdrawing them. According to the
complainant, the agency and the EEO counselor coerced her in various
ways, including threatening personnel action against her, if she did
not withdraw her complainant.
In its February 18, 1999 FAD, the agency concluded that there was
no reason to believe that complainant was coerced or even urged to
withdraw her claims of racial harassment and/or racial discrimination.
The complainant requests, on appeal, that we invalidate the settlement
agreement, to the extent that it constitutes a withdrawal of her racial
harassment and racial discrimination claims.
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
rasing 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. An complainant's bare assertions will
not justify a finding of coercion. See Raphel v. Department of the Army,
EEOC Request No. 05921042 (May 6, 1993).
In the instant case, the Commission finds that complainant failed
to present sufficient evidence showing that the settlement agreement
should be overturned. Complainant's allegations of coercion are not
substantiated by the record. The agency provides the statements of
the EEO counselor and other responsible officials who deny coercing
the complainant into withdrawing her complaint. Complainant fails to
support her allegations of coercion. Accordingly, the agency's final
decision is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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:
May 2, 2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
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:
_______________ __________________________
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 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.