01982855
11-19-1999
Karen C. Pyrcz, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Karen C. Pyrcz, )
Complainant, )
)
v. ) Appeal No. 01982855
) Agency No. 97-1764
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The Commission finds that the agency's February 12, 1999 letter of
determination dismissing Complainant's breach of settlement agreement
claim, is not proper pursuant to the provisions contained in 64
Fed. Reg. 37644, 37660 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.504.<1>
The record shows that on September 24, 1997, Complainant and the
agency reached a settlement agreement. Section 2a. of the settlement
agreement provided that the agency would �provide the complainant
with supervisor/management and/or leadership training as needed�.
Section 2b. of the agreement provided that: �[Complainant] will continue
to pursue her skills under the direction of Dr. [P]�.
By letter dated September 29, 1997, Complainant informed the Hospital
Director that she �was under duress, intimidated and coerced into the
signing the agreement in [her] EEO case�. Complainant then requested
to continue her EEO complaint with another EEO counselor. Complainant
further alleged that section 2b. of the settlement agreement had been
breached because her new position description provided that she would
be supervised by Dr. B, rather than Dr. P.
By letter dated January 28, 1998, the agency advised Complainant
that it had concluded that she had voluntarily signed the settlement
agreement. By letter dated February 12, 1999, the agency found that
the settlement agreement had not been breached. The agency noted that
while Complainant was still working under the supervision of Dr. P.,
her duties and responsibilities had changed and she would also report
to Dr. B. The agency further found that the agreement did not provide
that Complainant would only report to Dr. P.
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, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). 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. United States Postal Service, EEOC Request No. 05931097 (April
29, 1994)(citing Hyon O 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, 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)).
In the present case, we note that when the Complainant pursued the
EEO complaint process that led to the settlement agreement, one of the
bases of alleged discrimination that she identified was age. The Older
Worker's 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 in exchange for
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 the Complainant was waiving her rights or claims under the ADEA.
Moreover, the agency did not advise Complainant in writing to consult with
an attorney prior to executing the settlement agreement. 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.
Accordingly, the agency's final determination is REVERSED. The complaint
is REMANDED for further processing in accordance with this decision and
applicable regulations.
ORDER
The agency is ORDERED to resume processing the complaint from the point
where processing ceased. The agency shall acknowledge to the Complainant
that it has resumed processing of the complaint within thirty (30)
calendar days of the date this decision becomes final. A copy of the
agency's letter of acknowledgment to Complainant must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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:
November 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.