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.