Sherry L. Livingston, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 2, 2000
01993533 (E.E.O.C. May. 2, 2000)

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.