01A03218_r
12-12-2002
Joyce G. Hazelwood, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Joyce G. Hazelwood v. Department of Defense (Defense Finance & Accounting
Service)
01A03218
December 12, 2002
.
Joyce G. Hazelwood,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A03218
Agency No. DFAS-DE-SANB-99-016
DECISION
On February 15, 2000, complainant filed this appeal with the Commission
concerning the October 21, 1999 settlement agreement entered into by
the parties.
The settlement agreement provided, in pertinent part, that:
1. In exchange for the promises made by the Defense Finance and Accounting
Service-San Bernardino Operating location (herein called the "Agency"),
in paragraph two (2) of this agreement, (herein called the Complainant),
hereby withdraws with prejudice her formal discrimination complaint,
Agency Docket Number DFAS-DE-SANB-99-016 and Office of Complaint
Investigations (OCI) Docket Number DAY99FA0262E, filed by Complainant
on May 18, 1999, and Equal Employment Opportunity Commission, Office
of Federal Operations Appeal, Docket Number 01996297, filed on August
13, 1999. The Complainant further withdraws the basis of age from the
subject complaint. The Complainant knowingly and voluntarily agrees:
a. That no complaint, claim, charge, grievance, or communication, will be
submitted to any party by the Complainant regarding the matters mentioned
in the formal complaint; and
. . . .
2. In exchange for the promises of the Complainant in paragraph one (1)
of this agreement, the Agency agrees that:
. . . .
b. The Agency will pay the Complainant the lump sum of $3,500.00 in full
and complete satisfaction of all claims related to the cases referenced
above and matters referenced in this agreement, and all issues known to
the Complainant as of the date the Complainant executes this agreement.
c. The Agency will take action forthwith to resolve all issues relating
to Complainant's concerns that she is presently being required to perform
duties outside of her job description, to include, but not limited to,
meetings and discussions with Complainant's supervisory management
officials to ensure the Complainant is working completely within her
job description. Complainant and/or her Representative will be given
the option to attend such meetings and discussions. Should Complainant
believe that she is being required to perform any duty above her grade
level she will address her concern with the Deputy Director of Accounting,
and the concern may be elevated through the chain of supervision,
if necessary.
. . . .
5. The Complainant acknowledges that by entering into this agreement
she is waiving any rights or claims that she may have under the Age
Discrimination in Employment Act, and Title VII of the Civil Rights
Act of 1964, as amended.
6. This agreement constitutes the complete understanding between the
Complainant and the Agency and settles all claims between the Complainant
and the Agency. The Complainant hereby waives and Complainant will make
no claim for compensatory damages or attorney fees. No relief other
than that granted in paragraph 2 above will be granted by the Agency.
. . . .
9. Based upon, and in accordance with 29 C.F.R., Part 1614, Section
504, all parties further agree that any claimed violation, breach or
failure to perform any of the commitments described in this Agreement
by the Agency shall be submitted in writing to the EEO Director,
Defense Finance and Accounting Service Denver Center, 1931 Jefferson
Davis Highway, Arlington VA 20036, within 30 calendar days of the
date Complainant knew or reasonably should have known of the alleged
noncompliance. A copy of the written statement should also be sent to
the DFAS-DE EEO Officer at 6760 E. Irvington Place, Denver CO 80279-8000.
. . . .
11. The Complainant states that she has read the negotiated Settlement
Agreement and voluntarily agrees to accept its provisions.
By letter to the agency dated October 22, 1999, complainant rescinded the
settlement agreement, stating that, �after reading and understanding the
terms of this contract . . . I have decided not to settle.� Complainant
also alleged that she was �advised by the OCI investigator that I have
seven (7) days to decide.� On October 29, 1999, the agency responded
to complainant, indicating that, under the Commission's regulations,
the settlement was binding. Noting that complainant was represented
and her representative signed the agreement, the agency stated that it
would continue to implement the agreement. The record indicates that
on November 3, 1999, a settlement check in the amount of $3,500.00 was
mailed to complainant.
In her February 15, 2000 appeal, complainant asserts that she was coerced
into settlement, and that she was �needled, harassed, threatened and even
manipulated into signing the agreement.� Complainant further states
that she �could not concentrate or understand the agreement,� and that
due to the fact that she �had been there for 6 hours, totally stressed
out and unable to really comprehend what was being said, I signed the
paperwork.� Finally, complainant asserts that, only later, �when I had
the document interpreted to me by an attorney . . . I realized that
management had hidden the real meaning of the agreement,� and �then
rescinded the agreement, within 24 hours of signing.�
Although the agency has not responded to complainant's appeal, the
record shows that, after complainant attempted to rescind the agreement,
the agency requested a statement from the investigator assigned to the
complaint, who apparently was involved in negotiating the settlement
agreement. Specifically, the agency requested the investigator to
address complainant's statement that she had �seven days to decide,�
as it was the agency's understanding that the provision complainant
referenced had been dropped from the agreement because the basis of age
had been withdrawn. The investigator's resulting declaration claimed
that he recalled �stating to the complainant and her representative
that in connection with the basis of age only, that the Older Workers'
Benefit Protection Act (OWBPA) provided her with certain rights, including
the right to a reasonable time to review the agreement and consult an
attorney (30 days) and even to rescind the agreement within seven (7)
days of signing it.� The declaration also stated that the investigator
explained to the complainant that �she could voluntarily elect to withdraw
age as a basis for the complaint . . . and the provisions of the OWBPA
would not apply . . . .� Finally, the investigator stated that, �[n]ear
to the end of the discussions the complainant stated that she wished
to settle the complaint and to voluntarily withdraw age as a basis,�
and that the withdrawal of the basis of age �was then incorporated into
paragraph one of the agreement and that portion of her rights under the
OWBPA were deleted from the agreement.�
The record also indicates that complainant filed two discrimination
complaints consolidated by the agency, composed of 9 issues, on January
28, 2000, alleging discrimination when she was not selected for various
vacancies. In a February 28, 2000 letter to complainant, the agency
requested more information concerning timeliness on four issues,<1>
and dismissed 5 issues, claiming that the issues were addressed in
the settlement agreement. In a March 20, 2000 response to the agency,
complainant objected to the dismissals, reiterating that she canceled
the agreement the next day because it was signed under �stress and duress
. . . the agreement did not state what we discussed . . . and they worded
the agreement in a language that I could not understand.�
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. Department of Defense,
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. Department 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 v. United States Postal
Service, 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).
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: it is clearly
written from the viewpoint of complainant; it specifically refers to
rights or claims under the ADEA; the complainant does not waive rights
or claims arising after execution of the waiver; valuable consideration
is given in exchange for the waiver; complainant is advised in writing to
consult with an attorney prior to executing the agreement; and complainant
is given a "reasonable" period of time in which to consider the agreement.
29 U.S.C. � 626(f)(2); See also 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 instant case, we first find that the October 21, 1999 settlement
agreement is covered by the requirements of the OWBPA. Despite the
apparent attempt by the agency to remove the basis of age so as not to
include a waiver of complainant's age based claim in the settlement,
the record is clear that complainant forfeited or waived her ADEA
claim as part of the conditions of settlement, and that the waiver
was part of the agreement. In provision 1, the agreement states that
complainant �withdraws the basis of age from the subject complaint,� and,
in provision 4, states that complainant �acknowledges that by entering
into this agreement she is waiving any rights or claims that she may have
under the Age Discrimination in Employment Act.� We also find, however,
that there is insufficient evidence in the record to determine if the
minimum requirements were met, as specified under the OWBPA, for a knowing
and voluntary waiver of complainant's ADEA claims, and whether or not
complainant was misled concerning her rights to rescind the agreement.
Specifically, with regard to the OWBPA, we find that the record is
unclear at to whether complainant was advised in writing to consult with
an attorney prior to executing the agreement, or given a "reasonable"
period of time in which to consider the agreement. Additionally, the
record is also insufficient to determine exactly what was communicated to
complainant as to her right to rescind the agreement within seven days
of its signing. As such, we remand the matter to the agency to conduct
a supplemental investigation and supplement the record concerning the
above-stated matters, and to issue a decision concerning the validity
of the October 21, 1999 settlement agreement that specifically addresses
whether complainant's waiver of her ADEA rights was knowing and voluntary
under OWBPA standards, and whether complainant was misled with regard
to her ability to rescind the agreement within seven days.
Finally, complainant contends on appeal that the agency continues to
engage in reprisal, and submits information directly with the Commission
related to new instances of discrimination. Complainant is advised that
if she wishes to pursue, through the EEO process, the claims raised
for the first time on appeal, she shall initiate contact with an EEO
Counselor within 15 days after she receives this decision. The Commission
advises the agency that if complainant seeks EEO counseling regarding
the new claims within the above 15-day period, the February 15, 2000 date
complainant raised these claims with the Commission shall be deemed to be
the date of the initial EEO contact for each claim unless she previously
contacted a counselor regarding these matters. Cf. Alexander J. Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).
Accordingly, the matter is REMANDED to the agency for further processing
in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
The agency shall investigate whether complainant was advised in writing
to consult with an attorney prior to executing the October 21, 1999
settlement agreement, and whether complainant was given a "reasonable"
period of time in which to consider the agreement. The agency shall also
investigate what was communicated to complainant concerning her right
to rescind the agreement within seven days of its signing. The agency
shall supplement the record with any relevant documentation obtained as
a result of its investigation, specifically including affidavits from
those involved in the settlement negotiations.
Within 30 calendar days of the date this decision becomes final, the
agency shall issue a determination as to the validity of the settlement
agreement, specifically addressing whether complainant's waiver of
her ADEA rights was knowing and voluntary under OWBPA standards, and
whether complainant was misled with regard to her ability to rescind
the agreement within seven days.
A copy of the agency's determination regarding the validity of the
settlement agreement must be sent to the Compliance Officer as 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 (M0701)
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
December 12, 2002
__________________
Date
1These issues were later separately dismissed
by the agency in an April 12, 2000 decision, which was later affirmed
by the Commission. See Hazelwood v. Department of Defense, EEOC Appeal
No. 01A04504 (February 25, 2002).