Jaleesa P.v.Dep’t of Veterans Affairs

Equal Employment Opportunity Commission

Aug 14, 2019

EEOC Appeal No. 2019001777 (E.E.O.C. Aug. 14, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jaleesa P.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 2019001777

Agency No. 2003-0549-2018105307

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated December 11, 2018, dismissing her complaint
of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Employee and
Labor Relations Specialist, GS-12 at the Agency’s Dallas VAMC facility in Dallas, Texas.

On October 25, 2018, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of race (Black), age, and reprisal for prior protected EEO
activity, raising nine events of alleged discrimination relating to a hostile work environment,
occurring between February 19, 2017 and October 22, 2018, the day Complainant was removed
from federal service.

The Agency dismissed the complaint for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1). In so doing, the Agency noted that, on July 25, 2018, Complainant and the

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Agency executed a “Last Change Agreement” in which the Agency agreed to an abeyance of
Complainant’s removal from Federal service for 24 months and Complainant waived her rights
to civil and administrative appeal and grievance procedures relating to this matter, including
EEOC appeals. The Agency also noted that, in October 2018, Complainant’s removal was
reinstated due to her violation of the Last Chance Agreement and found that Complainant’s
allegations in the instant complaint are specifically addressed and/or identified in the Proposed
Removal, Removal Decision-Abeyance Letter, Last Chance Agreement, and Removal Notice
and/or are inextricably intertwined with the charges and provisions contained within those
documents.

The instant appeal followed.

ANALYSIS AND FINDINGS

An agency shall accept a complaint from any aggrieved employee or applicant for employment
who believes that he or she has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The
Commission's federal sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

On appeal, Complainant describes ongoing harassment and discrimination, beginning in the fall
of 2016 through October 2018. She alleges that she first made contact with an EEO counselor in
August 2017. She notes that in November 2018, she was reinstated with back pay, but the
Agency has not expunged her record or removed her “flawed performance appraisal.” She
alleges the Agency subjected her to disparate treatment, adverse impact to her employment, and
other damages.

In response, the Agency asserts that Complainant waived any potential claims, including such as
the instant complaint, she may have had arising out of her employment with the Agency prior to
the date of the Last Chance Agreement. The Agency reiterates its findings in its final decision
and asks that we affirm it.

At the onset, we find that the Agency properly dismissed the whistleblowing basis of
Complainant’s allegations, pursuant to 29 C.F.R. § 1614.107(a)(1), as this does not fall within
the purview of the EEO complaint process.

As concerning her age discrimination claims, the Age Discrimination in Employment Act
(ADEA) prohibits employers from discriminating against individuals age 40 and older because
of age. 29 U.S.C. § 623(a). In 1990, Congress amended the statute by passing the Older Workers
Benefit Protection Act (OWBPA). OWBPA § 201, 104 Stat. 983. As the Supreme Court has
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pointed out, the purpose of the statute is “clear from its title.” Oubre v. Entergy Ops., 522 U.S.
422, 427 (1998). It was “designed to protect the rights and benefits of older workers ... via a
strict, unqualified statutory stricture on waivers.” Id.; see also S. Rep. No. 263, 101st Cong., 2d
Sess. 31 (1990) (Senate Report) (stating that “the Committee intends that the requirements of
[the statute] be strictly interpreted to protect those individuals covered by the Act”), reprinted at
1990 U.S.C.C.A.N. 1509, 1537. In essence, “[t]he OWPBA governs the effect under federal law
of waivers or releases on ADEA claims and incorporates no exceptions or qualifications.” Oubre,
at 427.

In keeping with this purpose, the OWBPA provides that an individual “may not waive” an
ADEA claim “unless the waiver is knowing and voluntary.” 29 U.S.C. § 626(f)(1). However,
unlike non-age claim waivers, the OWBPA explicitly defines “knowing and voluntary” through
a list of required actions that must be undertaken before waiving age claims. Thus, the OWBPA
“sets up its own regime for assessing the effect of ADEA waivers, separate and apart from
contract law's generalized requirements.” Oubre, 522 U.S. at 427. Specifically, the statute
explains that waivers “may not be considered knowing and voluntary” unless, “at a minimum,”
they satisfy enumerated requirements found at 29 U.S.C. § 626(f)(1)(A)-(G).

The requirements for waiver/release of ADEA claims are:

A) the waiver is part of an agreement between the individual and the employer that is
written in a manner calculated to be understood by such individual, or by the average
individual eligible to participate;
B) the waiver specifically refers to rights or claims arising under this Act;
C) the individual does not waive rights or claims after the date the waiver is executed;
D) the individual waives rights or claims only in exchange for consideration in addition
to anything of value to which the individual is already entitled;
E) the individual is advised in writing to consult with an attorney prior to executing the
agreement;
F) (i) the individual was given a period of at least 21 days within which to consider the
agreement; or (ii) if a waiver is requested in connection with an exit incentive or other
employment termination program offered to a group or class of employees, the individual
is given a period of at least 45 days within which to consider the agreement; and
G) the agreement provides that for a period of at least 7 days following the execution of
such agreement, the individual may revoke the agreement, and the agreement shall not
become effective or enforceable until the revocation period has expired.

29 U.S.C. § 626(f)(1)(A)-(G).

The Commission has held that OWBPA waiver requirements apply to age discrimination claims
that had not yet been filed at the time a waiver/release was executed. Hester S. v. EEOC, EEOC
Appeal No. 0120121983 (Oct. 24, 2016). Thus, although Complainant's formal complaint was
filed after the waiver was executed, the waiver at issue here must comply with the requirements
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of the OWBPA to validly waive age claims involving matters that occurred before the execution
of the agreement.

Applying OWBPA's requirements to this waiver, we note that the waiver fails to meet the
requirement of specifically referring to rights or claims arising under the ADEA. Additionally,
the waiver does not state that Complainant was advised in writing to consult with an attorney
prior to executing the agreement. The agreement also does not state that Complainant was given
adequate time to consider the agreement, or advised her that she had at least seven days to revoke
the agreement. Therefore, all OWBPA requirements were not met in this case. As such, we find
that the waiver does not constitute a valid waiver of Complainant's age discrimination claims.
See Daniels v. U.S. Postal Serv., EEOC Appeal No. 0120103252 (May 31, 2012) (agreement
purporting settlement of age claim void where it did not mention Complainant's rights or claims
under the ADEA, there was no indication that he was advised in writing to consult with an
attorney, there was no indication that he was given a reasonable period of time in which to
consider the agreement, and it did not state that complainant had seven days to revoke the
agreement after he signed the agreement); see also Oubre, 522 U.S. at 428 (failure to comply
with the OWBPA's stringent waiver safeguards will void the settlement agreement only with
regard to the ADEA claims); Sheehy v. National Security Agency, EEOC Request No.
0520100403 (Feb. 27, 2012). Therefore, we find that Complainant’s age-based claims of ongoing
harassment and discrimination were improperly dismissed as relating to the Last Chance
Agreement.

In addition, while we find that Complainant waived her claim as to harassment due to race up to
the Last Chance Agreement, to the extent that she alleges the race-based harassment continued
after the execution of the Last Chance Agreement, we find this claim was also improperly
dismissed.

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the Order below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision was issued. The Agency shall
issue to Complainant a copy of the investigative file and also shall notify Complainant of the
appropriate rights within one hundred fifty (150) calendar days of the date this decision was
issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of
receipt of Complainant’s request.
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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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 (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
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20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The

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court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 14, 2019
Date