01a44658
10-20-2004
Velia L. Foster, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Velia L. Foster v. Department of the Treasury
01A44658
October 20, 2004
.
Velia L. Foster,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A44658
DECISION
On June 9, 2004, complainant filed an appeal with the Commission
requesting that a September 8, 1998 settlement agreement be declared
invalid. The Commission accepts the appeal. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that in the event that a
complainant believes that the agency failed to comply with a settlement
agreement, the complainant shall notify the EEO Director, in writing,
of the alleged non-compliance. EEOC Regulation 29 C.F.R. � 1614.504(b)
provides that if the agency does not respond to complainant in writing,
or if complainant is not satisfied with the agency's determination,
the complainant may appeal to the Commission for a determination.
The complainant may file such an appeal 35 days after serving the agency
with written notice of the allegation of non-compliance, but must file
an appeal within 30 days of receipt of the agency's determination.
The complainant must serve a copy of the appeal on the agency and
the agency must submit a response to the Commission within 30 days of
receiving notice of the appeal.
According to the record, complainant filed a breach claim on September
28, 1998, and the agency issued a final determination on July 8, 1999.
Therein, the agency found that it complied with the terms of the
settlement agreement at issue, and provided complainant with appeal rights
to the Commission. Commission records reflect that complainant did not
file an appeal with reference to the July 8, 1999 final determination.<1>
Furthermore, the record is devoid of any indication that complainant
filed a subsequent breach claim with the agency, or that she provided
the agency with a copy of her current appeal and appeal statement,
as mandated by the above cited regulation.
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.
A settlement agreement may be voided if one of the parties establishes
that assent was obtained by duress or coercion. See Mosley v. St. Louis
Southwest Railroad, 634 F.2d 942 (5th Cir. 1981); Hodge v. Department
of the Army, EEOC Appeal No. 01954577 (December 7, 1995). In addition,
misrepresentation as to facts relevant to the complaint may cause the
Commission to set aside a settlement agreement. See Wolf v. U.S. Postal
Service, EEOC Request No. 05900417 (June 14, 1990).
Notwithstanding the above circumstances, even in considering the arguments
raised by complainant on appeal, i.e., that she signed the settlement
agreement due to "fear," and was "coerced and betrayed" into signing the
settlement agreement, we find that she presents no evidence to support
her contentions.<2> Complainant avers that the agency misled her into
believing that the settlement agreement guaranteed her approval for
disability retirement; however, we note that the settlement agreement
contains a provision which expressly states: "Complainant also fully
understands that the OPM [Office of Personnel Management] has approval
authority over the application for disability retirement."
The settlement agreement also contains a provision which states:
"The complainant has been given a reasonable amount of time to consider
this agreement before signing it, and advised to consult an attorney if
he/she desired." Additionally, we find that complainant's failure to
file an appeal after the agency rendered its July 8, 1999 determination,
and her nearly five-year delay since that time to pursue this matter,
further belies her claims.
Therefore, for the reasons set forth above, we find that complainant has
failed to show that the settlement agreement should be declared void
due to duress or misrepresentation, and we find that the settlement
agreement at issue is valid and enforceable.
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 (S0900)
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 (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
October 20, 2004
__________________
Date
1We note that the record contains no evidence, such as a certificate of
mailing or a signed and dated certified service receipt, to demonstrate
when complainant received the July 8, 1999 final determination.
2We note that complainant, who indicates that she is profoundly deaf,
admits that the agency provided her with effective sign language services
during the negotiation of her settlement agreement.