01981092
10-08-1998
Fred A. Board, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Fred A. Board v. Department of the Navy
01981092
October 8, 1998
Fred A. Board, )
Appellant, )
)
v. ) Appeal No. 01981092
) Agency Nos. 95-00187-037
) 96-00187-008
John H. Dalton, ) 96-00187-021
Secretary, ) 97-00187-001
Department of the Navy, )
Agency. )
)
DECISION
On November 18, 1997, appellant filed a timely appeal with this Commission
from the agency's October 16, 1997 decision, received by him on October
20, 1997, which denied his request to set aside the settlement agreement
and to reinstate his complaints of unlawful employment discrimination
that the parties had settled. See 29 C.F.R. ��1614.504, .402(a); EEOC
Order No. 960, as amended.
The issue presented on appeal is whether a valid settlement agreement
exists.
Appellant asserts on appeal that his then attorney (Attorney A) signed the
settlement agreement without his authorization.<1> Appellant asserts
that when Attorney A sent him a copy of the agreement on August 7,
1997, at 15:34 p.m., Attorney A informed him "to take the settlement
with your changes and march on." Appellant further asserts that he
did not respond to the facsimile and there were issues in dispute that
still needed to be resolved. Attorney A signed the agreement at 16:58
p.m., after it was signed by the agency's representative at 16:57 p.m.
Attorney A then sent appellant a signed copy of the agreement by facsimile
at 17:12 p.m. on August 7, 1997, but appellant did not see the agreement
until later that evening. Appellant also asserts on appeal that the
provisions of the Older Workers' Benefit Protection Act (OWBPA) were
not met and, therefore, the settlement agreement is invalid.
In response to appellant's appeal, the agency contends that a valid
settlement agreement exists because Attorney A was authorized to
sign the settlement agreement. The agency states that appellant
informed the agency that Attorney A was representing him on all his EEO
complaints in an electronic message sent to the agency on June 20, 1997.
The agency notes that on July 8, 1997, in a conference call with the EEOC
Administrative Judge, appellant and Attorney A presented a settlement
offer which was rejected by the agency. The agency states that another
settlement conference call was conducted with the AJ which included
appellant and Attorney A. Attorney A submitted another settlement
proposal. On August 7, 1997, several conference calls were held with the
agency, appellant and Attorney A. The agency then made two proposals.
Attorney A communicated to the agency in writing that he discussed
the two proposals with appellant and that appellant was rejecting one
proposal and accepting the second. Based on the acceptance, the agency
prepared an official agreement for signatures. The agency indicates that
Attorney A and the agency informed the AJ that a settlement was reached.
When the AJ inquired of Attorney A whether appellant understood and
accepted the terms of the agreement, the agency stated that Attorney A
confirmed that appellant had accepted the agreement.
On August 7, 1997, appellant and the agency entered into a settlement
agreement. In relevant part, appellant agreed to withdraw his complaints,
"including but not limited to" Agency Nos. 96-00187-008, 96-00187-021,
95-00187-037, 97-00187-001, and an informal complaint with an EEO
Counselor contact date of August 4, 1997. The settlement agreement also
provided that appellant was agreeing not to institute any other appeals,
complaints, or actions with respect to any matter arising prior to the
settlement agreement. The agreement also provided that appellant and
the agency had discussed all aspects of the settlement agreement with
their representatives and were voluntarily entering into the settlement.
The settlement agreement was not signed by appellant but was signed by
Attorney A and the agency representative.
Upon review, the Commission finds that the settlement agreement
is invalid. The record reflects that one of the bases of alleged
discrimination that appellant identified in Agency Nos. 97-00187-001 and
96-00187-021, two of the complaints that were identified as being settled,
was age. The OWBPA amended the Age Discrimination in Employment Act
(ADEA), effective October 16, 1990, and provides the minimum requirements
for waiver of ADEA claims. 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.
29 U.S.C. �626(f)(2); Swain v. Department of the Army, EEOC Request
No. 05921079 (June 3, 1993) (settlement agreement upheld which was found
to meet the waiver provisions of the OWBPA); Juhola v. Department of
the Army, EEOC Appeal No. 01934032 (June 30, 1994).
In the case at hand, because appellant raised age discrimination claims
in Agency Nos. 97-00187-001 and 96-00187-021, the provisions of OWBPA
are applicable. The settlement agreement provides in part that appellant
would withdraw those complaints and waive his right to further appeals.
However, the settlement agreement does not specifically state that
appellant was waiving his rights or claims under the ADEA as required by
the OWBPA. Furthermore, there appears to be some question as to whether
appellant was provided with a "reasonable" period of time in which to
consider the agreement since the agreement was executed by his attorney
within less than two hours of its presentation to appellant. Accordingly,
we find that the waiver requirements of the OWBPA were not met.
Accordingly, the agency's final decision is REVERSED and the complaints
are REMANDED to the agency for further processing from the point where
processing ceased.
ORDER
The agency is ORDERED to resume processing of appellant's complaints from
the point where processing ceased. The agency shall acknowledge to the
appellant that it has resumed processing of the complaints within thirty
(30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to appellant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 8, 1998
DATE Ronnie Blumenthal, Director
1Appellant retained new counsel (Attorney B) when he initially filed his
appeal with the Commission. In July 1998, while the appeal was pending,
appellant retained another attorney (Attorney C).