01A06004_r
07-17-2001
Ulysses Farley III, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Ulysses Farley III v. Department of the Navy
01A06004
July 17, 2001
.
Ulysses Farley III,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A06004
Agency Nos. 9763126019
9863126001
9863126022
9863126028
DECISION
The record reflects that the agency and complainant entered into
a settlement agreement on November 19, 1998, in resolution of the
above captioned complaints alleging discrimination based on race,
color, sex, age, and in reprisal for prior protected activity.
The settlement agreement provided in pertinent part that complainant
would be reimbursed for one day of leave; and that agency management
would cause an independent management inquiry into a variety of areas,
including work assignments, overtime, and training.
In his letter dated September 12, 2000 to the Commission, complainant
alleged that the agency breached the November 19, 1998 settlement
agreement. The complainant alleged that the agency breached the November
19, 1998 settlement for the following reasons:
(1) the agency failed to provide complainant and his representative copies
of the workplace inquiry that was conducted as a result of the agreement;
(2) the agency drafted the agreement provisions in a one-sided manner
in favor of the agency;
(3) the settlement agreement included an �unconstitutional gag clause;�
and
(4) the agency sent complainant a �demand for payment,� which complainant
perceived as a retaliatory agency action.
EEOC Regulations provide that any settlement agreement knowingly and
voluntarily agreed to by the parties shall be binding on both parties.
If the complainant believes that the agency has failed to comply with the
terms of a settlement agreement, then the complainant shall notify the
EEO Director of the alleged noncompliance "within 30 days of when the
complainant knew or should have known of the alleged noncompliance."
29 C.F.R. �1614.504(a). The complainant may request that the terms
of the settlement agreement be specifically implemented or request
that the complaint be reinstated for further processing from the point
processing ceased. Id.
Settlement agreements are contracts between the complainant and the
agency and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. Eggleston v. Department of Veterans Affairs, EEOC Request
No. 05900795 (Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d
296 (7th Cir. 1938). In reviewing settlement agreements to determine
if there is a breach, the Commission is often required to ascertain the
intent of the parties and will generally rely on the plain meaning rule.
Wong v. USPS, EEOC Request No. 05931097 (Apr. 29, 1994) (citing Hyon
v. USPS, EEOC Request No. 05910787 (Dec. 2, 1991)). This rule states that
if the writing appears to be plain and unambiguous on its face, then its
meaning must be determined from the four corners of the instrument without
any resort to extrinsic evidence of any nature. Id. (citing Montgomery
Elevator v. Building Engineering Service, 730 F.2d 377 (5th Cir. 1984)).
The Commission notes that when complainant pursued the EEO complaint
process that led to the settlement agreement, age was one of the bases of
alleged discrimination that he identified. The Older Workers' Benefit
Protection Act (OWBPA) amended the Age Discrimination in Employment Act
of 1967 (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: it is clearly written from the viewpoint of the complainant; it
specifically refers to rights or claims under the ADEA; the complainant
does not waive rights or claims arising following execution of the
waiver; valuable consideration is given in exchange for the waiver; the
complainant is advised, in writing, to consult with an attorney prior
to executing the agreement and the complainant is given a �reasonable�
period of time in which to consider the agreement. 29 U.S.C.� 626(f)(2).
See 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 this case, the settlement agreement did not specifically provide
that complainant was waiving his rights or claims under the ADEA.
We also find that the record does not show that complainant was given
a reasonable period of time within which to consider the settlement
agreement. Therefore, we find that the waiver requirements of the OWBPA
have not been met by the settlement agreement and it is therefore invalid.
The Commission also determines that complainant's retention of any
consideration that he may have received under the settlement agreement is
no impediment to the reinstatement of his ADEA claims against the agency.
See Oubre v. Entergy Operations Inc., 522 U.S. 422, 118. S. Ct 838
(1998). Moreover, complainant is advised that if he prevails on his EEO
complaints, any monetary award may be subject to offset by consideration
that he has already received from the agency. See Oubre, id. Therefore,
the Commission determines that the agency improperly declined to reinstate
complainant's complaints.
Accordingly, the agency's finding of no breach of the settlement agreement
is REVERSED. The matter is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER
The agency is ORDERED to reinstate complainant's EEO complaints and
other related matters that may have purportedly been disposed of by the
settlement agreement of November 19, 1998, at the point which processing
ceased. The agency shall acknowledge to complainant that it has resumed
processing complainant's complaints and other related matters within
thirty (30) calendar days of the date that this decision becomes final.
A copy of the agency's letter of acknowledgment notifying complainant
of the reinstatement of his complaints and other related matters must
be sent to the Compliance Officer referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M701)
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 (R0900)
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 (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
July 17, 2001
__________________
Date