0120130700
05-09-2013
Earl D. Smith, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Earl D. Smith,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130700
Agency No. 200J-0583-2011103115
DECISION
On November 29, 2012, Complainant filed a timely appeal with this Commission from a final Agency determination by the Agency dated November 8, 2012, finding that the settlement agreement the parties entered into was valid and it was in compliance with its terms. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to his informal complaint, Complainant worked as a Program Support Clerk (OA), GS-4 at the Agency's Roudebush Medical Center in Indianapolis, Indiana.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. He alleged discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. (age); Section 501 of the Rehabilitation Act of 1973, (Rehabilitation Act) as amended, 29 U.S.C. � 791 et seq. (disability); and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq (race), and perhaps also under the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq.
On June 30, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
I. Waivers: In consideration of not-otherwise-required actions of the Agency under this Agreement, the Aggrieved Person/Complainant:
a. Voluntarily withdraws all pending informal and formal EEO complaints, including but not limited to EEO Case(s) No. 200J-0583-2011103115.
b. Waives or withdraws any other complaints, claims, grievances, appeals or other actions against the Agency and its past and present officers and employees, in their personal or official capacities, which are or may be asserted by the Aggrieved Person/Complainant or on the Aggrieved Person/Complainant's behalf, based on any event occurring before the Aggrieved Person/Complainant's execution of this Agreement....
II. Agency Obligation:
In consideration of the actions of the Aggrieved Person/Complainant described in this Agreement, the Agency shall fulfill the following obligations, not otherwise required:
a. Convert Earl Smith to GS-5 Supply Tech position description by July 29, 2011. Earl Smith will maintain current routine duties and responsibilities in the SIMS area Monday thru Friday tours only.
b. [Indentified Supervisor] will address the SIMS staff today at 1300 to clarify with Earl Smith's coworkers the expectations related to Earl Smith's coordination of duties....
III. Aggrieved Person/Complainant Acknowledgements: ....
e. Has been given at least 21 calendar days to consider this agreement;....
V. Revocation: Consistent with the ADEA or OWBPA, the Aggrieved Person/Complainant may revoke this Agreement, including any waivers under the ADEA or OWBPA, up to 7 calendar days following execution of this Agreement. This Agreement shall be effective and enforceable after the revocation period has expired....
By letter to the Agency dated July 6, 2011, Complainant timely exercised his option to revoke the settlement agreement. Specifically, he wrote "I'm exploring the possibility of reforming the settlement agreement.... If this agreement can be corrected...I'm for it...to put the agreement in plain [E]nglish.... If we cannot reform those parts of the agreement...that are unconstitutional, it is revoked."
The EEO Program Manager asked Complainant what language he wanted changed. Complainant answered by email on July 6, 2011, that he objected to waiver clause language, both that it was too broad and to the term "not otherwise required actions," which he characterized as legal language not understood by laypeople.
The EEO Program Manager then offered to schedule a second mediation if Complainant wanted to renegotiate the settlement agreement. He responded on July 7, 2011, that he wanted to negotiate a settlement agreement without a waiver. On the same day the EEO Program Manager replied they had instructions from the Agency's Office of Policy & Compliance not to alter the "language in the template," and advised Complainant on July 28, 2011, that his EEO case was closed so there would be no mediation. Complainant asked the EEO counselor why his EEO case was closed, and on July 28, 2011, via a formal written email response she explained because of the waiver provision of the settlement agreement.
On August 28, 2011, Complainant wrote the EEO counselor alleging that there were new acts of discrimination which involved "a possible retaliation against the [above] agreement...." Complainant emailed the EEO Program Manager on September 14, 2011 that he was ready to "reform" or do whatever was necessary for his claim to go forward. The EEO Program Manager asked Complainant for clarification, asking if (1) he felt the settlement agreement was "still in place," and if not (2) did he feel that he revoked it. Referring to the EEO counselor's email of July 28, 2011, in his September 15, 2011, reply Complainant wrote "the agreement is in place, when it comes to the waiver sections of the agreement;" that "it seems the agreement is not in place" when it came to what he was supposed to have received, and he timely revoked the settlement agreement on July 6, 2011.
Around September 25, 2011, the Agency took action to retroactively promote Complainant effective July 3, 2011, to Supply Technician, GS-5. The supervisor identified in the settlement agreement wrote that after the June 29, 2011, mediation where the settlement agreement was partially signed, he met with SIMS staff as agreed to clarify the expectations related to Complainant's coordination duties. Another Agency official has written that Complainant's duties have not changed and his tour remained Monday thru Friday, from 8 AM to 4:30 PM.
Thereafter, on August 1, 2012, Complainant wrote the Agency EEO Program Manager that while he timely revoked the settlement agreement, management forced him to accept it, and that he was retaliated against in the last week when a supervisor advised him that his position description was going to be rewritten. He suggested it was going to be rewritten to add duties outside those called for in the settlement agreement.
On September 19, 2012, Complainant wrote the Agency's Office of Policy and Compliance asking if his EEO complaint was closed before his time limit to revoke the settlement agreement expired. He argued again that he timely revoked the settlement agreement on July 6, 2011. In response to an Agency inquiry, on October 1, 2012, Complainant wrote the Agency's Office of Resolution Management indicating that his EEO complaint was wrongly closed after he revoked the settlement agreement, that he wanted to renegotiate it, and that he should be able to keep the benefits he received there from because they were forced on him.
In its FAD the Agency found that it complied with the settlement agreement.
The Agency found that while Complainant first contemplated revoking the settlement agreement on July 6, 2011, he did not claim until September 19, 2012, that the settlement agreement was not binding, and hence laches applied because he failed to diligently pursue his revocation claim.
The Agency found that pursuant to the Older Workers' Benefit Protection Act (OWBPA), the settlement agreement provided for a seven day revocation period following the execution of the agreement. It found that Complainant did not unequivocally revoke the settlement agreement during this time period. It observed that on July 6, 2011, Complainant wrote that he was exploring reforming the settlement agreement, and interpreted his August 28, 2011, email that additional claims of discrimination may involve possible retaliation against the settlement agreement to mean he considered it binding. The Agency found that because he did not unequivocally revoke the settlement agreement Complainant was retroactively promoted, and his not contesting the promotion constituted a binding ratification of the settlement agreement. It further found that any benefits received under the settlement agreement must be returned before the complaint was reinstated.
Complainant emphasizes on appeal that he is claiming he timely revoked the settlement agreement, not breach. Regarding his August 28, 2011, email, Complainant writes he alleged reprisal, not breach.1 Regarding his September 15, 2012, email, Complainant points out that he argued that he timely rescinded the settlement agreement. Complainant argues that he should keep any benefits he received from the settlement agreement because they were forced on him, and asks for compensatory damages.
In opposition to the appeal, the Agency argues that the FAD should be affirmed.
ANALYSIS
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.
Under the settlement agreement, Complainant was free to revoke the agreement up to seven calendar days following the execution thereof.2 While the revocation provision cited the ADEA/OWBPA as authority, it was written more broadly to allow revocation of the entire agreement, i.e.., "...Complainant may revoke this Agreement, including any waivers under the ADEA or OWBPA...."
We disagree with the Agency's assessment of the evidence regarding revocation. On July 6, 2011, Complainant timely and unequivocally exercised his option to revoke the settlement agreement. His writing that he was revoking the settlement agreement unless its terms were changed constituted a revocation because he was demanding a new settlement agreement. Complainant explained to the Agency that he wanted to change the waiver language, which he characterized as too broad. The broad waiver was a central term in the settlement agreement. He reiterated this the next day.
After the Agency advised Complainant that it would not renegotiate the settlement agreement and repeatedly advised him that his EEO complaint was closed, with the EEO counselor explaining on July 28, 2011, that this was because of the waiver portion of the settlement agreement, on August 28, 2011, Complainant complained of new acts of discrimination involving "a possible retaliation against the agreement."
We disagree with the Agency's finding that on August 28, 2011, Complainant communicated that the settlement agreement was binding. While Complainant wrote that new acts of discrimination "may involve a possible retaliation against the agreement," this was after the Agency repeatedly advised him that the settlement agreement was binding, i.e., would not be renegotiated and his complaint was closed. He did not backtrack on his timely and repeated revocation which the Agency refused to recognize. Moreover, on September 15, 2011, in response to an Agency request for clarification, Complainant responded in writing prior to the Agency taking action to retroactively promote him that he timely revoked the settlement agreement.
Because Complainant timely revoked the settlement agreement the doctrine of laches does not apply. We add that the Agency refused to accept the revocation, and did not provide appeal rights. Given the language in the revocation clause in the settlement agreement, Complainant's revocation applies to the entire settlement agreement. This includes all his claims --- claims under Title VII, Rehabilitation Act, and EPA if he made one, as well as the ADEA.
The Agency found that Complainant ratified the settlement agreement by accepting the benefits there from, and that to reinstate his complaint he must return to the status quo ante, meaning return the benefits prior to reinstatement.
We find that the Agency's failure to accept Complainant's timely revocation violated the OWBPA. By including the seven day revocation period in the settlement agreement, under Commission regulations the Agency had to abide by this period for the waiver to be considered knowing and voluntary under the OWBPA, and the Agency did not so abide.
The settlement agreement has been revoked by Complainant, and accordingly, his complaint is reinstated. Regarding his ADEA claim, under the OWBPA Complainant's receipt of the benefits of the settlement agreement and failure to tender them back to the Agency does not operate to waive his ADEA claim since the statutory requirement of a knowing waiver was not met. Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426 - 28 (1998). While this statutory based legal principle does not apply to his Title VII and Rehabilitation Act claims, and an EPA claim if he made one, requiring Complainant to tender back would undermine the OWPBA, and hence we will not require it. Cf. Sheehy v. National Security Agency, EEOC Request Nos. 0520100403 (Feb. 27, 2012) (waiver of ADEA claims under settlement agreement voided under the OWBPA, but not the Title VII and Rehabilitation Act claims. The settlement agreement waiver was not defective as to Title VII and Rehabilitation Act claims. To go forward with her ADEA claims Complainant was not required to tender back benefits received under settlement agreement, including a retroactive promotion, back pay, and a lump sum payment of $5,000); McMahon v. Department of Homeland Security (Customs and Border Protection), EEOC Appeal No. 0120112007 (April 11, 2012) (waiver of ADEA claims under settlement agreement voided under the OWBPA, but not Title the VII claims. The settlement agreement waiver was not defective as to the Title VII claim. To go forward with her ADEA claims, Complainant was not required to tender back benefits received under the settlement agreement, including an offer of employment).
If Complainant eventually prevails on his claims, the Agency may seek to reduce his award by the benefits he received under the settlement agreement. Sheehy and McMahon.
Accordingly, the Agency's decision regarding the validity of the settlement agreement is REVERSED, and REMANDED for further processing in accordance with the Order below.
ORDER
The Agency is ordered to resume processing of Complainant's informal complaint from the point processing ceased, in accordance with 29 C.F.R. Part 1614. It shall send Complainant a letter of acknowledgment that processing has resumed.
A copy of the Agency's letter of acknowledgment to Complainant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 77960, Washington, DC 20013. 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 (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
May 9, 2013
__________________
Date
1 The record does not reflect whether the Agency processed Complainant's new claims of discrimination under 29 C.F.R. Part 1614, i.e., provided him EEO counseling, a notice of right to file a new complaint, and so forth. If the Agency has not done so, and Complainant wishes to pursue his new claims, he should contact an EEO counselor and provide evidence of when he initially contacted the EEO office or someone logically connected thereto regarding his new claims of discrimination.
2 The Agency wrote that the 7 day revocation language was required by the OWBPA. We note that the applicable portion of the OWBPA (ADEA), 29 U.S.C. � 626(f)(2) [Section 7(f)(2)] provides in part that a waiver of age discrimination claims under the ADEA is not considered knowing and voluntary unless, at a minimum the Complainant is given a "reasonable" period of time in which to consider the agreement. Sheehy v. National Security Agency, EEOC Request No. 0520100403 (Feb. 2, 2012). This provision does not set out specific time limits on what is reasonable. However, Commission regulations provide that while the time periods under Section 7(f)(1) of the ADEA (such as the seven day revocation period) do not apply to subsection Section 7(f)(2), a waiver agreement under Section 7(f)(2) that provides the time periods specified in Section 7(f)(1) will be considered "reasonable" for purposes of section 7(f)(2)(B) of the ADEA. 29 C.F.R. � 1625.22(g)(3) & (5).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120130700
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130700