Donald R. Hackworth, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 26, 2001
01995333 (E.E.O.C. Feb. 26, 2001)

01995333

02-26-2001

Donald R. Hackworth, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


Donald R. Hackworth v. Department of the Treasury

01995333

February 26, 2001

.

Donald R. Hackworth,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01995333

Agency No. 96-4152

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated May 28, 1999, denying his request to reinstate his formal

EEO complaint, which was withdrawn pursuant to a settlement agreement

entered into by complainant's representative on his behalf on September

5, 1996. On appeal, complainant is arguing that the settlement agreement

entered into by his representative, violated the Older Workers' Benefit

Protection Act (OWBPA).

Complainant previously appealed an agency decision dated December 11,

1996, denying his request to reinstate the underlying EEO complaint.

In the decision on that appeal, the Commission vacated the agency's

decision and remanded the case back to the agency for a supplemental

investigation to determine if the September 5, 1996 settlement agreement

complied with the OWBPA and then either issue a second decision or

reinstate complainant's complaint. EEOC Appeal No. 01972181 (May 5,

1998). On May 28, 1999, the agency issued a second decision denying

complainant's request for reinstatement of his underlying complaint.

It is from this decision that complainant now appeals.

The OWBPA amended the ADEA, effective October 16, 1990, and provides the

minimum requirements for waiver of ADEA claims. Juhola v. Department of

the Army, EEOC Appeal No. 01934032 (June 30, 1994). To meet the standards

of the OWBPA, a waiver is not considered knowing and voluntary unless,

at a minimum: (1) the waiver is clearly written from the viewpoint of

the complainant; (2) the waiver specifically refers to rights or claims

under the ADEA; (3) the complainant does not waive rights or claims

arising following execution of the waiver; (4) valuable consideration

is given in exchange for the waiver; (5) the complainant is advised in

writing to consult with an attorney prior to executing the agreement;

and (6) the complainant is given a "reasonable" period of time in which

to consider the agreement. Id. (citing 29 U.S.C. �626(f)(2)).

In the present case the OWBPA provisions are applicable because the

settlement agreement purported to resolve complainant's claim of age

discrimination. The Commission finds, that the settlement agreement

specifically and clearly provided that complainant was waiving his rights

or claims under the ADEA. Furthermore, the agency advised complainant

in writing to consult an attorney prior to executing the settlement

agreement, the agency provided valuable consideration in exchange

for the waiver, and complainant did not waive his rights or claims

arising subsequent to the execution of the agreement. Also, we find

that complainant's representative was provided a reasonable period of

time to consider the settlement agreement. Therefore, we find that the

waiver requirements of the OWBPA were met by the settlement agreement.

Accordingly, the agency's finding that the September 5, 1996 settlement

agreement complied with the OWBPA requirements was proper and is hereby

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 26, 2001

__________________

Date