0120122203
10-19-2012
Ali R. Darvishian, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Ali R. Darvishian,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122203
Agency No. ARIMCENT12FEB00388
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 28, 2012, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor in Engineering at Bagram Airfield in Bagram, Afghanistan. Believing that the Agency subjected him to unlawful discrimination he contacted an Agency EEO Counselor in February 2012 to initiate the EEO complaint process. The case was assigned number ARIMCENT12FEB00388. By correspondence dated March 2, 2012, Complainant was provided a notice of right to file a formal complaint for this case. He filed his complaint on March 14, 2012.
Complainant is based out of Fort Bliss in San Antonio Texas. On November 21, 2011, he arrived at Bagram Airfield on a one year Temporary Duty assignment. In his complaint he alleged that he was discriminated against based on reprisal for prior EEO activity regarding various actions. The most salient were being informed on December 22, 2011, that he was being removed as supervisor of engineering in Bagram; termination of his temporary duty assignment, being sent back to Fort Bliss on January 1, 2013; problems with the travel on the return trip; and efforts to remove him over the last two years. He raised these matters with the EEO counselor, alleging race, national origin and reprisal for prior EEO activity discrimination.
On March 12, 2012, just prior to filing his formal complaint, Complainant and the Agency entered into a settlement agreement. Therein the parties explicitly agreed to settle three of Complainant's prior formal complaints (ARBLISS11OCT0445; ARBLISS11JAN00291; ARBLISS11MAY02242) regarding events in 2011. Complainant alleged age discrimination in at least one of these complaints. The settlement agreement also explicitly settled informal complaint ARIMCENT12FEB00388. Complainant agreed in the settlement agreement that it constituted full and complete settlement of any and all issues and claims arising from the circumstances of the above formal and informal EEO complaints.
In the settlement agreement the Agency agreed to reassign Complainant to the position of Supervisory Strategic Planning Specialist, GS-301-14; remove adverse disciplinary actions initiated and decided at Fort Bliss from Complainant's Official Personnel File; pay him up to $2,475 for expenses incurred in his voluntary move back home to the state of Virginia; and pay him $5,000 in claimed legal expenses. Complainant agreed to retire by March 31, 2012, and that if he did not do so all the above would be reversed, including reinstatement of days suspended, etc., and Complainant would return all the above money to the Agency.
Pursuant to the provisions of the Older Workers' Benefits Protection Act (OWBPA), Complainant acknowledged in the settlement agreement that:
1. He is waiving any and all rights and claims he may have under the Age Discrimination and Employment Act of 1967, as amended, concerning the issues, claims or facts contained in the subject formal and informal complaints;
2. He is aware that he is not waiving any rights or claims that may arise after the date the settlement is executed;
3. The Agreement was clearly written in a manner calculated to be understood by him and that he has, in fact, read and understands;
4. The settlement terms provide valuable consideration in addition to anything of value to which he is already entitled;
5. He was given a reasonable period of time within which to consider the settlement agreement before signing it; and
6. That he was advised to consult an attorney before executing the settlement agreement.
In its final decision the Agency dismissed complaint ARIMCENT12FEB00388 on the grounds that he settled it on March 12, 2012, in the pre-complaint stage on the same claims.
On appeal Complainant contends that he was not reassigned as agreed. He argues that his complaint (ARIMCENT12FEB00388) was not settled at the pre-complaint stage on March 12, 2012. He argues that he filed the claim on or after March 14, 2012, as a reprisal claim which was not included in his previous claims. Complainant does not identify any new claims. Complainant contends that he signed the settlement agreement under "much stress" to stop harassment by management and subordinates who ridiculed and laughed at him after the settlement negotiation. He contends that he was told that if he did not agree to retire the negative write ups would be restored to his personnel file, and that under the Douglas Factors they would likely support a removal.
In opposition to the appeal the Agency argues that it did reassign Complainant as agreed, and submits a Notification of Personnel Action showing he was reassigned, as agreed, effective March 11, 2012. It argues that the settlement agreement resolved informal ARIMCENT12FEB00388 and covers the connected formal complaint because it is on the same matters or arises from them. It argues that Complainant did not sign the settlement agreement under duress.
ANALYSIS
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. Dep't of Def., EEOC Request No. 05960032 (Dec. 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. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 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 O v. U.S. Postal Serv., EEOC Request No. 05910787 (Dec. 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).
We find that the documentation submitted by the Agency is sufficient to show Complainant was reassigned, as agreed.
We also find that the settlement agreement covered the claims in formal complaint ARIMCENT12FEB00388. We note also that Complainant raised reprisal in his informal complaint.
Before we examine whether the record contains sufficient evidence of coercion, the Commission observes that at least one of the underlying complaint raises the basis of age and therefore the settlement agreement must meet the requirements set forth in the OWBPA, which amended the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., effective October 16, 1990. The OWBPA provides that a waiver of ADEA claims is not considered knowing and voluntary unless, at a minimum: (1) the waiver is clearly written from the viewpoint of the complainant; (2) the waiver specifically refers to rights or claims under the ADEA; (3) the complainant does not waive rights or claims arising following execution of the waiver; (4) valuable consideration is given in exchange for the wavier; (5) the complainant is advised in writing to consult with an attorney prior to executing the agreement; and (6) the complainant is given a reasonable period of time in which to consider the agreement. Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing 29 U.S.C. � 626(f)(2)).
We find that the Agency complied with the OWBPA. We note that on the same day Complainant signed the settlement agreement he signed a letter stating that he took the opportunity to have his legal counsel review the settlement agreement.
Because the Commission favors the voluntary resolution of discrimination complaints, settlement agreements are not lightly set aside. However, if coercion, misrepresentation, misinterpretation, or mistake occurs during the formation of the contract, assent to the agreement is impossible, and the Commission will find the contract void. This Commission examines coercion claims with much scrutiny. The party raising the defense of coercion must show that there was an improper threat of sufficient gravity to induce assent to the agreement and that the assent was in fact induced by the threat. Such a threat may be expressed, implied or inferred from words or conduct, and must convey an intention to cause harm or loss. A complainant's bare assertions will not justify a finding of coercion. Cannella v. Department of Veterans Affairs, EEOC Appeal No. 01995444 (Dec. 5, 2000). Complainant has not met this burden. While he contends that he was advised that if the disciplinary actions in his personnel file stood this would likely provide a basis for removal, this does not show duress because he has not shown he was given such alleged advice in bad faith.
The final Agency decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 19, 2012
__________________
Date
2
0120122203
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122203