01A12160_r
05-18-2001
Don Lynch, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Don Lynch v. USPS
01A12160
May 18, 2001
.
Don Lynch,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12160
Agency Nos. 1F-901-0025-99 & 1F-901-0224-97
Hearing Nos. 340-99-3388X & 340-98-3357X
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 1, 2001 finding that it was in compliance with
the terms of the November 7, 1999 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 (b).
On December 7, 1999, complainant and the agency settled complaints that
complainant had filed on the bases of race, color, national origin,
age and disability. The settlement agreement provided, in pertinent
part, that:
A. The Complainant will be allowed one (1) final opportunity to take
the 470 Battery Examination on Saturday, November 20, 1999.
In the event the Complainant passes the exam, the reinstatement process
will continue.
Complainant wrote a letter to the agency dated December 4, 2000, wherein
he alleged that the agency had breached the settlement agreement.
Specifically, Complainant alleged that he has not been reinstated to
the Postal Service despite having passed the 470 battery examination.
Complainant questioned whether the agency had negotiated in good faith.
The agency in its final decision dated February 1, 2001, found that it
was in compliance with the settlement agreement. The agency specifically
found that complainant's request for reinstatement was considered along
with the other employees.
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 Defense,
EEOC Request No. 05960032 (December 9, 1996).
Settlement agreements are contracts between the complainant and the
agency and 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 re Chicago & E.I. Ry. Co., 94 F.2d 296
(7th Cir. 1938). 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 (Apr. 29 1994)
(citing Hyon v. United States Postal Service, EEOC Request No. 05910787
(Dec. 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)).
The Commission notes that when complainant pursued the EEO complaint
process that led to the settlement agreement, age was one of the bases of
alleged discrimination that he identified. The Older Workers' 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 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 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 the instant case, the settlement agreement did not specifically
provide that complainant was waiving his 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 final agency's decision is VACATED. 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 December 7, 1999, 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) calender days of the date that this decision becomes final.
A copy of the agency's letter of acknowledgment notifying complainant
of the reinstatement of his complaints and other related matters must
be sent to the Compliance Officer referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 18, 2001
__________________
Date