0520120463
11-29-2012
Shirley R. Jennings, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Shirley R. Jennings,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120463
Appeal No. 0120120607
Agency No. 2003-0629-2010104978
DENIAL
The Agency timely requested reconsideration of the decision in Shirley R. Jennings v. Department of Veterans Affairs, EEOC Appeal No. 0120120607 (March 22, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed a formal complaint in which she alleged that the Agency subjected her to discrimination on the basis of age. On August 31, 2011, during a settlement conference with an EEOC Administrative Judge (AJ), Complainant and the Agency entered into a settlement agreement regarding Complainant's complaint. The agreement provided that Complainant had seven days to revoke the agreement from its date of execution, as provided by the Older Workers Benefits Protection Act (OWBPA). Subsequent to the execution of the agreement, Complainant asked the Agency to revoke the agreement because she signed it under duress. In its final decision, the Agency concluded that the agreement was valid because Complainant had not signed it under duress or coercion and did not revoke the agreement within the seven-day revocation period. The Agency further noted that Complainant had been paid $4,500 under the terms of the agreement.
In our previous decision, the Commission found that Complainant revoked the agreement in a letter dated August 31, 2011. The Commission noted that, although the Agency maintained that it did not receive Complainant's revocation letter until September 28, 2011, the record did not indicate when Complainant filed or mailed her revocation letter. The Commission concluded that, in the absence of evidence to the contrary, Complainant's revocation should be considered as timely filed. Additionally, the Commission determined that Complainant's retention of any consideration received under the agreement was not an impediment to the reinstatement of her underlying ADEA claim against the Agency, but if Complainant prevails on her claim, any monetary award may be subject to an off-set by the consideration she received from the Agency under the settlement agreement.
In its request for reconsideration, the Agency argues that Complainant's revocation letter was untimely submitted because she signed the settlement agreement on August 23, 2011, but her revocation letter is dated August 31, 2011, which is eight days from the date of the execution of the agreement. The Agency further maintains that it located the envelope that Complainant used to send her revocation letter and attached it to its request for reconsideration. The Agency also argues that, if Complainant's revocation was timely, Complainant must return any consideration she received under the agreement.
We note that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.
Specifically, the Agency maintains in its request for reconsideration that it has located the envelope that contained Complainant's revocation letter. However the record inexplicably still does not contain a copy of the purported envelope or any other evidence that establishes when Complainant sent the revocation letter. The Agency further argues that even if Complainant sent the letter on August 31, 2011, Complainant's notice of revocation is still untimely because she signed the settlement agreement eight days earlier (August 23, 2011). However, the settlement agreement was not executed until both parties had signed it. The record reveals that the Agency did not sign it until August 31, 2011, the date of Complainant's revocation letter. Finally, the Agency argues that if Complainant's revocation was timely, she must return any consideration she received under the agreement. However, we have held that a Complainant does not have to instantly return consideration when a settlement agreement is voided or revoked under the ADEA. Johnson v. Dep't of Transportation, EEOC Appeal Nos. 0120055936, 0120061099 (Feb. 16, 2007) (citing Oubre v. Energy Operations, Inc., 522 U.S. 422, 427-28 (1998)). Instead, if a complainant eventually prevails on her ADEA claims, the Agency may then seek to reduce her award by the benefits she received under the settlement agreement. Id.; Sheehy v. Nat'l Security Agency, EEOC Request No. 0520100403 (Feb. 27, 2012). Therefore, as our previous decision found, Complainant timely revoked the settlement agreement, and her underlying EEO claim is reinstated.
Consequently, after reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120120607 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency shall submit a request for a hearing and the complaint file for Complainant's underlying complaint to the Hearings Unit of the EEOC's New Orleans Field Office within thirty (30) 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 file has been transmitted to the Hearings Unit of the New Orleans Field Office. 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (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
November 29, 2012
Date
2
0520120463
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120463