Catherine Turner, Complainant,v.Dale Cabaniss, Chairman, Federal Labor Relations Authority, Agency.

Equal Employment Opportunity CommissionFeb 10, 2004
01A33521_r (E.E.O.C. Feb. 10, 2004)

01A33521_r

02-10-2004

Catherine Turner, Complainant, v. Dale Cabaniss, Chairman, Federal Labor Relations Authority, Agency.


Catherine Turner v. Federal Labor Relations Authority

01A33521

February 10, 2004

.

Catherine Turner,

Complainant,

v.

Dale Cabaniss,

Chairman,

Federal Labor Relations Authority,

Agency.

Appeal No. 01A33521

Agency No. 2003TUR

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated May 16, 2003, regarding the May 15, 2003

settlement agreement into which the parties entered.

The settlement agreement provided, in pertinent part, that:

[Complainant] will be reassigned to a GS-9 position in the Office of the

General Counsel. The reassignment will not result in any loss of pay

for [complainant]. The reassignment will be effective no later than the

beginning of the first pay period after the execution of this agreement.

In the settlement agreement, complainant withdrew her complaint in which

she alleged discrimination on the bases of sex, race, and retaliation.

By memorandum to the agency dated May 16, 2003, complainant alleged that

she signed the agreement under duress and was coerced into agreeing

to its terms. Complainant requested that the agreement be voided.

Specifically, complainant alleged that the agency failed to give her

adequate time to consult with counsel and to consider the proposed terms

of the settlement agreement before she was asked to sign it. In its May

16, 2003 decision<1>, the agency concluded that complainant signed the

agreement freely and voluntarily and that her withdrawal was not accepted

by the agency. The agency's response further directed complainant to

report to her new assignment the following Monday, May 19, 2003.

On appeal, complainant states that she received no less than four

telephone calls, plus an electronic mail message from the attorney for

the agency on May 15, 2003. Complainant states that her first-line

supervisor, the agency official identified in complainant's complaint

as the alleged discriminatory official, repeatedly walked by her desk

and paced in the reception area of the office where her desk is located,

between 11:00 am when the agency's attorney first started calling her,

until 4:10 pm. Between 3:00 pm and 4:00 pm, complainant states that

she attempted to consult with private counsel, but could not obtain

an appointment until the following week. Complainant claims she was

pressured into signing the agreement on May 15, 2003.

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).

In the instant case, we find the parties achieved a binding agreement and

that complainant voluntarily signed the agreement. We note that part of

the consideration granted to complainant was the opportunity to obtain

immediate reassignment, which complainant does not deny she obtained.

The agency asserts, and the Commission agrees, that complainant was not

subjected to duress or coercion when she entered into the agreement.

The agency states that complainant was faced with a choice: sign the

agreement on May 15, 2003, and the reassignment would be effective within

two working days (the subsequent Monday) or not sign the agreement on May

15, 2003, and the reassignment would be delayed at least one week (until

one week from the subsequent Monday) because the agency representative

would not be in the office for a day. There is no coercion or duress

faced by complainant in this choice. There is no indication that the

agency devised a scenario to force complainant to make a quick decision.

There is no indication that the agency denied complainant the right

to seek counsel. The quicker complainant would sign the agreement,

the quicker she would get the remedy she apparently desired. Under the

circumstances, the Commission finds that complainant voluntarily entered

the agreement and that it is valid.

The agency's determination that a valid settlement agreement was achieved

on May 15, 2003 is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 10, 2004

__________________

Date

1The agency's response to complainant's

memorandum in which she withdraws her consent to the agreement, is by

electronic mail message to complainant. We deem this response to be

the agency's determination regarding the validity of the settlement

agreement and a denial of complainant's request.