0120151891
10-02-2015
Arthur F.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arthur F.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151891
Agency No. 200J03302013100458
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 20, 2014, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On November 25, 2013,2 Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(2)(b) Complainant's removal on November 16, 2012, will be changed to reflect a voluntary resignation effective December 5, 2012.
(d) The Agency shall remove from the Complainant's Official Personnel Folder (OPF) any documents referencing negative performance or conduct within 30 days of the execution of this agreement. The Agency will provide the Complainant with a complete copy of his OPF confirming that these changes have occurred consistent with this settlement agreement.
(6) AGE DISCRIMINATION IN EMPLOYMENT ACT WAIVER. To the extent that Complainant has waived claims based upon alleged age discrimination, the Parties agree that this Agreement complies with the requirements of the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act. In particular, Complainant is hereby advised of the following:
(a) Complainant is advised to consult with an attorney before signing and delivering this Agreement. However, the decision whether to consult with an attorney rests with Complainant.
(b) Complainant is advised to read the entire Agreement and seek clarification of any provision(s) he does not fully understand before signing this Agreement.
(c) Complainant is advised that he has not waived any rights or claims that may arise after the Effective Date of this Agreement.
(d) Complainant is advised that he has not waived any rights or claims to benefits to which he is entitled.
(e) Complainant is advised that he has twenty-one (21) days from the date of receipt of this Agreement to consider its terms. Should Complainant sign this Agreement before the twenty-first (21 st) day, Complainant's decision to accept a shortening of this period must be knowing and voluntary and must not be induced by the Agency or anyone else through fraud, misrepresentation and/or a threat to withdraw or alter the terms of this Agreement.
(f) Complainant is advised that he has seven (7) days from the date that all Parties have signed this Agreement to revoke this Agreement. Complainant may revoke this Agreement by delivering written notice of revocation to the Agency's representative at the following address...
By letter to the Agency dated February 14, 2014, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that when the Agency removed documents from his OPF, it was left with large gaps of missing important documentation which would be "extremely negative for his federal employment pursuits." Complainant asserted that the Agency used some negative comments when they changed his OPF. Complainant wanted the Agency to leave parts of some documents in his OPF. He wanted the notation "Employee resigned during trial period" to be changed to "Employee resigned." Complainant also asserted he did not receive all the proceeds from his sick and annual leave balances.
In its March 20, 2014 FAD, the Agency concluded it was not in breach of the agreement. The Agency stated it paid the money as instructed, removed the documentation from the OPF, and provided documentation showing that Complainant's sick and unpaid annual leave were applied as set forth in the agreement. The Agency provided Complainant with a listing of changes in his OPF. The Agency noted the agreement specified that it would remove documents from the OPF, not change the documents.
Complainant appealed3 asserting that the settlement agreement was vague regarding its use of the phrase "negative performance." In addition, Complainant argued that he revoked the settlement agreement by fax dated April 29, 2014. As such, Complainant requested that the settlement agreement be voided. The Agency requested that the Commission affirm its decision finding no breach of the settlement agreement.
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. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
On appeal, Complainant asserted that he revoked the settlement agreement by faxed letter dated April 29, 2014. In 1990, the Older Workers' Benefit Protection Act (OWBPA) amended the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. � 621 et seq. The OWBPA provides the minimum requirements for a waiver of age discrimination claims under the ADEA. Under OWBPA, a waiver is not considered knowing and voluntary unless, at a minimum: (1) it is clearly written from the viewpoint of the Complainant; (2) it specifically refers to rights or claims under the ADEA; (3) the Complainant does not waive rights or claims arising in exchange for 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; (6) the Complainant is given a "reasonable" period of time in which to consider the agreement; and (7) it specifically states that Complainant has at least 7 days following the signing of the agreement to revoke the agreement. 29 U.S.C. � 626(0(2); 29 C.F.R. � 1625.22. We note that during the signing of the agreement, Complainant was represented by an attorney (Attorney). As noted above, provision (6) of the settlement agreement clearly stated that the agreement was executed under the ADEA and he was made aware of the reasonable period of time to consider the agreement and was provided with seven days to revoke the agreement from the date all signatures were obtained. Based on our review, we find that under the OWBPA, Complainant did knowingly and voluntarily waive his ADEA claim.
Complainant asserted that he revoked the settlement in April 2014. The settlement agreement was signed on November 25, 2013, by the Agency representative. Therefore, Complainant would have had seven days from November 25, 2013, to revoke the agreement. Accordingly, we find that his April 2014 revocation was significantly beyond the seven-day period. As such, the agreement remains in effect.
We now turn to the issue of whether the Agency has breached the settlement agreement. In the instant case, we find that the Agency has complied with the agreement. It removed the documents referenced in the agreement. If Complainant wanted only portions of some documents removed, he should have specified such in the agreement. Further, if he wanted specific language used with reference to his resignation, he should have stated such in the agreement. As noted above, Complainant was represented by the Attorney when he signed the agreement. He also asserted that he provided the Attorney with documents he wanted included in the OPF, however, the Attorney failed to provide these documents to the Agency. In addition, the Agency provided Complainant with a copy of the OPF to ensure that the "negative references" were in fact removed. Complainant did not assert that "negative references" remained in the OPF. Finally, the Agency has provided documentation regarding the payment of Complainant's annual and sick leave. Complainant has not stated specifically where there is any error. As such, we find the Agency is in compliance with the agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no breach of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, 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 (S0610)
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 (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 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
October 2, 2015
__________________
Date
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.
2 The record indicated that Complainant signed the agreement on November 22, 2013, and the Agency representative signed it on November 25, 2013.
3 We note that Complainant's appeal had been docketed as EEOC Appeal No. 0120141917 (Aug. 12, 2014). The decision was vacated by our decision in EEOC Request No. 0520140536 (April 16, 2015) and the instant appeal was opened in order to address Complainant's appeal.
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