01991837_r
12-22-1999
Wally M. DeRose, Complainant, v. Madeline K. Albright, Secretary, Department of State, Agency.
Wally M. DeRose, )
Complainant, )
)
v. ) Appeal No. 01991837
) Agency No. 98-20
Madeline K. Albright, )
Secretary, )
Department of State, )
Agency. )
____________________________________)
DECISION
On December 14, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by his attorney
of record on November 30, 1998, pertaining to his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> In
his complaint, complainant alleged that he was subjected to discrimination
on the bases of age (DOB 8/27/38) and in reprisal for prior EEO activity
when the agency denied him a re-employment opportunity with Diplomatic
Security as a Special Agent.
The agency dismissed appellant's complaint for failure to state a claim.
Specifically, the agency noted that on June 6, 1994, complainant signed
a settlement agreement related to a previous complaint which provided,
in pertinent part, that it was �in full settlement and satisfaction of
any and all claims, demands, rights, and causes of action of whatsoever
kind and nature, arising from, and by reason of any and all known
and unknown, foreseen and unforeseen damages and the consequences
thereof, resulting, and to result, from the same subject matter that
gave rise to the [complainant's prior complaint], including any claims
for which [complainant] or his heirs, executors, administrators, or
assigns, and each of them, now have or may hereafter acquire against
the United States of America, its agents, servants, and employees.�
As the instant complaint alleged, inter alia, that complainant was
subjected to discrimination in reprisal for his prior complaint, the
agency concluded that he was, by the terms of the settlement agreement,
barred from raising the instant complaint. In the alternative, the agency
dismissed appellant's complaint on the grounds that it was rendered moot
by the settlement agreement, and/or because it was the basis of a civil
action in which the complainant was a party.
By regulation, 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. 64 Fed. Reg. 37, 644, 37, 660 (1999)(
to be codified and hereinafter referred to as 29 C.F.R. �1614.504(a)).
However, the Commission has long held that a complainant may validly waive
only those claims arising from discriminatory acts or practices which
antedate the execution of the settlement agreement. Vigil v. Department
of the Army, EEOC Request No. 05960521 (June 22, 1998), (citing Bimes
v. Department of Defense, EEOC Request No. 05970359 (March 27, 1997).
Thus, a release or agreement that waives prospective EEO rights is
invalid and a violation of public policy. Id. In cases in which there
is a prospective waiver, only the prospective waiver provision, not the
entire settlement agreement, is invalid. Id.
After a careful review of the record, the Commission finds that the
provisions of the settlement agreement on which the agency relies
represent a prospective waiver of complainant's rights under the EEOC
regulations. Accordingly, we find that those provisions are invalid,
and that complainant had standing to raise the instant EEO complaint.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(5)) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the factfinder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
The agency asserted that because complainant was party to the settlement
agreement which prospectively waived his right to file related claims,
the instant complaint was rendered moot. However, as the Commission
determined that the prospective waiver provisions of the settlement
agreement were void, we find that the instant complaint was not rendered
moot, as it is unaffected by the prior settlement agreement.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(3)) allows for the dismissal of a
complaint that is pending in a United States District Court in which the
complainant is a party. Commission regulations mandate dismissal of the
EEO complaint under these circumstances so as to prevent a complainant
from simultaneously pursuing both administrative and judicial remedies
on the same matters, wasting resources, and creating the potential
for inconsistent or conflicting decisions, and in order to grant due
deference to the authority of the federal district court. See Shapiro
v. Department of the Army, EEOC Request No. 05950740 (October 10, 1996);
Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079
(May 7, 1990); Kotwitz v. United States Postal Service, EEOC Request
No. 05880114 (October 25, 1988).
The Commission finds that the agency erred in dismissing the subject
complaint pursuant to 29 C.F.R. � 1614.107(a)(3). The record discloses
that the civil action which complainant filed, and subsequently settled,
concerned matters that were separate and distinct from the instant claim.
Consequently, dismissal on the grounds that the matter was raised in a
civil action was improper.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
December 22, 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:
_______________ __________________________
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.