01995141
08-02-2000
Lillian F. Sandle, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Lillian F. Sandle v. Department of Veterans Affairs
01995141
August 2, 2000
Lillian F. Sandle, )
Complainant, )
)
v. )
) Appeal No. 01995141
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On June 6, 1999, complainant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated April 26, 1999, finding
that it was in compliance with the terms of the April 2, 1997 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); EEOC Order
No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
2. The Department of Veterans Affairs and the Denver VAMC agree to the
following:
a. Compensate [complainant] in the amount of $50,000.00
b. Destroy all negative documents in agency files relating to conduct
or performance issues.
c. Priority placement within six months from the date of this agreement
into a position (from the list of positions provided by the complainant)
that is to be filled by VAMC Denver. She must meet the minimum
qualifications and physical requirements of the position
e. That the complainant will provide VAMC Denver with updated medical
documentation identifying any and all physical restrictions.
f. The complainant will provide VAMC Denver with a list of positions
that she requested to be considered for.
g. That the complainant will provide VAMC Denver with an updated
employment application, i.e., SF 171 or resume.
h. Attorney fees $16,600.00
By letter to the agency dated September 14, 1998, complainant claimed that
the settlement agreement was entered into �under coercion, fraudulent
inducement, misrepresentation, duress, and in protest....� Complainant
argued that she was coerced by the agency and an Administrative Judge
to enter into the agreement, when they purportedly stated that most
of her complaints were not worth hearing; witnesses were waiting; her
cases were costing the government money and she needed to hurry and
make a decision. Additionally, in response to the agency's request for
additional information, complainant argued that the agency failed to
destroy all negative documents and that, although she provided a list
of twenty possible positions, she was notified that she only qualified
for a few of the positions.
The agency issued a FAD dated April 26, 1999 finding no breach of the
settlement agreement.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as 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 Commission notes that when complainant pursued the EEO complaint
process that led to the settlement agreement of April 2, 1997, one
of the bases of alleged discrimination that she identified was age.
The Older Workers' Benefit Protection Act (OWBPA), amended the 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 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 Juhola v. Department of the
Army, EEOC Appeal No. 01934032 (June 30, 1994).
In the instant case, the settlement agreement provides in part that
complainant would withdraw her complaints and waive �all pending
administrative procedures and filings which are or may be filed in
relation� to the complaints. However, the settlement agreement does not
specifically state that complainant was waiving her rights or claims
under the ADEA as required by the OWBPA. Moreover, the agency did not
advise complainant in writing to consult with an attorney prior to
executing the settlement agreement. Furthermore, there appears to be
some question as to whether complainant was provided with a �reasonable�
period of time in which to consider the agreement since it was executed
immediately after two days of �extensive settlement negotiations.� We
therefore conclude that complainant's waiver of her ADEA rights under
the settlement agreement was not knowing or voluntary. Accordingly,
we determine that the settlement agreement is invalid. See Hopkins
v. Department of the Navy, EEOC Appeal No. 01953389 (September 1, 1995);
request to reconsider denied, EEOC Request No. 05960016 (February 20,
1998).
The Commission also determines that complainant's retention of any
consideration she may have received under the settlement agreement is no
impediment to the reinstatement of her ADEA claims against the agency.
See Oubre v. Entergy Operations Inc., ____U.S.____ 118 C. Ct. 838
(1998). Moreover, complainant is advised that if she prevails on her EEO
complaints, any monetary award may be subject to offset by consideration
that she 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
of April 2, 1997 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 April 2, 1997, 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 acknowledgement notifying complainant
of the reinstatement of her complaints and other related matters 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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
August 2, 2000
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:
_______________ __________________________
Date Equal Employment Assistant
1On 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.