0120122899
12-05-2012
Paulette M. Charles, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Paulette M. Charles,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122899
Agency No. ARFTSAM11NOV04795
DECISION
Complainant filed an appeal with this Commission concerning a settlement agreement into which the parties entered on June 27, 2012. See 29 C.F.R. � 1614.504; and 29 C.F.R. � 1614.405.
BACKGROUND
In early 2012, Complainant alleged that she had been discriminated against based on race (African American), color (Black), and sex when, from May 2009 to November 3, 2011, she was not paid equal pay as other coworkers for having performed the duties of Network Administrator, Budget Officer and Project Management Support Specialist. Complainant amended that complaint to include allegations that she was assigned additional duties/responsibilities with no additional compensation and for not receiving a performance award for the superior rating that she received.
On June 27, 2012, the parties met for a fact-finding conference on Complainant's discrimination allegations. Thereafter, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
3. The Agency agrees:
(a) Pay complainant a performance award for the appraisal period ending in 2011 of 1% of basic pay.
(b) Pay attorney fees of seven thousand dollars ($7,000.00).
(c) Assist complainant with completing and submitting an application for tuition assistance to the appropriate Army office.
(d) Pay complainant $650, which represents reimbursement for medical expenses.
(e) Restore 40 hours of sick leave to complainant.
(f) Award complainant a quality step increase (QSI) on February 24, 2013.
In her appeal to the Commission, dated July 6, 2012, Complainant alleged that she had been coerced into signing the agreement. Complainant also complains about the way the fact-finding conference was conducted. Complainant stated that the mediator made "coercive statements" to her. Complainant states she "felt pressured into a corner of making an irrational decision" and that none of the documentation she had prepared was reviewed. Complainant seeks to reinstate her complaint, stating that she could prove her claims of discrimination.
In a later submission, Complainant asserts that she was "under medical treatment and on medication that affected her decision making process." Complainant states she was "incapable of entering into a settlement." Complainant also asserts that once she was "attentive," it became apparent that she was coerced into the settlement agreement. Complainant states that the Agency failed to timely comply with the agreement.
Finally, on September 5, 2012, Complainant informed the Commission that she had reimbursed the Agency for the check it sent her in August 2012 because the "payment by the Department of the Army was untimely therefore returned accordingly." A copy of a check made out to the Agency for $7,980 was enclosed.
In response to the appeal, the Agency noted that Complainant did not allege a breach of the agreement in her initial appeal. Nonetheless, the Agency enclosed documentation showing it had complied with each of the provisions of the agreement except for (f) which is due in February 2013. The Agency addressed Complainant's coercion arguments, noting that Complainant was represented by an attorney during the fact-finding conference, and that her attorney had also signed the agreement. Additionally, the Agency noted that Complainant "was allowed a private office within the EEO offices, after negotiation talks were finished and prior to signing the agreement, to talk privately with her attorney (and her spouse) for over an hour before returning and agreeing to settle the case."
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 (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. Dep't 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 O v. U.S. Postal Serv., 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).
If coercion, misrepresentation, misinterpretation, or mistake occur during the formation of the contract, assent to the agreement is impossible, and the Commission will find the contract void. See Shuman v. Dept. of the Navy, EEOC Request No. 05900744 (July 20, 1990). The 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 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, Lenihan v. Dept. of the Navy, EEOC Request No. 05960605.
In the instant case, we find that Complainant has not met her burden of establishing coercion. Instead, Complainant seems dissatisfied with the agreement and seeks to have her complaint reinstated so that she can prove her discrimination claims. A settlement agreement made in good faith and otherwise valid will not be set aside simply because it appears that one of the parties made a bad bargain. See Miller v. Dept. of the Treasury, EEOC Request No. 05960622. Here, Complainant was represented by an attorney. She does not assert that her attorney misled her or was incompetent. Further, she does not challenge the Agency's statement that she was given a private room to confer with her attorney and did so. To the extent that she argues she was on medication and incapable of assenting to the agreement, she has provided no medical documentation to support her argument. As such, the Commission finds that the settlement agreement was a valid contract between the parties.
To the extent that Complainant is alleging a breach, the Commission finds there has been no breach of the agreement. The Agency provided documentation showing it had complied with its terms. Further, we note that the agreement does not have any set time frame for compliance and as such the Agency's issuance of a check in August 2012 was expeditious and timely. However, given that Complainant has returned the monies to the Agency in the mistaken belief that such would allow her to void the agreement; the Commission is ordering the Agency to return the full amount to Complainant.
For the reasons set forth above, we find that the settlement agreement is valid and the Agency has not breached its terms.
ORDER
Within ninety (90) days of the date this decision becomes final, the Agency shall issue Complainant a check for $7,980.00.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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 (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 (R0610)
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 (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
December 5, 2012
__________________
Date
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0120122899
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122899