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EEO complaint, which was withdrawn pursuant to a settlement agreement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