03A20012
08-28-2002
Steven G. Campo, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.
Steven G. Campo v. United States Postal Service (Capital-Metro Area)
03A20012
August 28, 2002
.
Steven G. Campo,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital-Metro Area),
Agency.
Petition No. 03A20012
MSPB No. DC-0752-00-0842-I-1
DECISION
BACKGROUND
As a preliminary matter, the record establishes that Steven G. Campo
(�petitioner�) filed a �non-mixed� employment discrimination
complaint<1> against his former employer, the United States Postal
Service (Capital-Metro Area) (�the agency�). This complaint, filed
on or around April 3, 2000, alleged that the agency had discriminated
against petitioner during his tenure as a Distribution Clerk at the
agency's Norfolk Airmail Facility, by consistently refusing to grant
him overtime. Petitioner claimed that this pattern of overtime denial
constituted unlawful discrimination on the bases of petitioner's race
(Black), color (light complexion), sex (male), age (date of birth of
November 19, 1953), and disability (back condition/stress). Petitioner
was thus alleging that the agency had violated Title VII of the Civil
Rights Act of 1964 (�Title VII�), as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (�the ADEA�), as amended,
29 U.S.C. � 621 et seq., and/or Section 501 of the Rehabilitation Act
of 1973 (�the Rehabilitation Act�), as amended, 29 U.S.C. � 791 et seq.<2>
On June 30, 2000, petitioner received a notice of proposed termination.
He then received a final agency decision, dated August 25, 2000, removing
him from the agency. After he was terminated, and believing that the
agency removed him, at least in part, in retaliation for his prior equal
employment opportunity (�EEO�) activity (i.e., filing his April 2000 EEO
complaint), petitioner filed a �mixed case appeal�<3> over this removal
action with the Merit Systems Protection Board (�the MSPB�).
Subsequently, on December 13, 2000, the parties entered into a settlement
agreement related to this mixed case appeal. This agreement provided,
in pertinent part, that:
It is understood by the undersigned that this Agreement is in full and
complete settlement of all outstanding administrative EEO complaints or
appeals, in this or any other forum, filed by the below named [petitioner]
. . . relating to any matters pursuant to this agreement which occurred
prior to the execution of this Settlement Agreement. [Petitioner]
agrees to voluntarily withdraw any outstanding administrative complaint
or appeal, and to request that any Grievance be withdrawn. It is
understood that settlement is contingent upon those complaints, appeals,
or grievances being withdrawn related to the issues of this settlement
agreement . . . .
It is understood and agreed that neither party will seek to set aside
this Settlement Agreement on account of any dispute that arises over
the implementation of the terms of this Agreement. [Petitioner] may
only seek to enforce this Settlement Agreement pursuant to those Merit
[S]ystems Protection [B]oard regulations regarding enforcement . . . .
It is understood that [petitioner] shall not litigate or relitigate
in any forum, judicial or administrative, any claims arising from the
actions involved in this Appeal . . . . It is understood and agreed
that neither [petitioner] not his representative shall seek or accept
any other benefits, fees, or costs with regard to this instant appeal[]
or settlement of the underlying matters therein . . . . Further, this
Settlement Agreement resolves all the issues related to [petitioner's]
Merit Systems Protection Board Appeal, Docket No. DC-0752-00-0842-I-1.
Settlement Agreement Between Petitioner and the Agency (Dec. 13, 2000),
at 1-2.
In a decision dated December 19, 2000, an administrative judge with the
MSPB reasoned that this settlement agreement was �lawful on its face,
and appears to have been freely and voluntarily entered into by the
parties.� MSPB Initial Decision (Dec. 19, 2000), at 1-2. Therefore, the
MSPB administrative judge concluded, �the settlement agreement . . . to
this appeal is approved for entry into the record,� and it was �therefore
appropriate that the [petitioner's MSPB] appeal be dismissed.� Id. at 2.
Petitioner filed a petition for review with the MSPB, asking the MSPB to
reconsider this administrative judge's decision. Petitioner apparently
was seeking to have the signed settlement agreement set aside, arguing
that the agreement did not comport with the requirements contained in
the Older Workers Benefit Protection Act of 1990 (�OWBPA�), which amended
the ADEA.
On September 28, 2001, the MSPB summarily denied this petition and
stated (without addressing the merits of petitioner's appeal) that the
administrative judge's ruling was final and that this was the MSPB's
�final decision in this matter.� MSPB Final Order (Sept. 28, 2001), at 2.
This MSPB denial did not contain a notice informing petitioner of a
right to appeal the MSPB's final decision to the U.S. Equal Employment
Opportunity Commission (�EEOC� or �the Commission�). Nevertheless, on
November 8, 2001, petitioner filed a timely petition with EEOC asking
for review of the MSPB's final order. In this petition, petitioner
again argued that the settlement agreement was invalid under OWBPA,
and that it should be rescinded. More specifically, petitioner claimed:
The law is clear that a waiver of a right in a settlement agreement
must be comprehensive, freely made and fair . . . . In order to be
enforceable, the waiver of a statutory right must constitute the informed,
intentional relinquishment of a known right . . . . [Petitioner] was
unaware of the potential rights he waived as part of the settlement
agreement, including his rights under the ADEA. In order for a waiver
of EEO rights to be valid under the ADEA, the agreement must meet the
standards of [OWBPA] [which] sets forth with particularity certain
requirements in order for the waiver of an ADEA action to be considered
knowing and voluntary . . . . In the case before the Commission,
the settlement agreement calls for [Petitioner], who is over 40 years
of age, to waive any EEO complaint he may have. Obviously included in
that waiver is any age discrimination complaint. However, the agreement
does not meet the minimum requirements of . . . OWBPA in that it does
not, for example, specifically refer to rights or claims arising under
the ADEA, provide for a period of at least twenty-one (21) days within
which to consider the agreement or provide for a seven (7) day period
to revoke the agreement . . . . Based on th[is] . . . failure of the
agreement to include the necessary provisions required by . . . OWBPA
. . . [petitioner] prays the settlement agreement be set aside and he
be permitted to proceed forward with his case.
Petitioner's Petition Brief (Dec. 7, 2001), at 1-3.
The agency did not file any reply brief on the matter with EEOC.
However, in an earlier submission to the MSPB (filed in connection with
petitioner's appeal of the MSPB administrative judge's decision), the
agency had argued that:
In his petition [to the MSPB, petitioner] requested that the settlement
agreement be rescinded and that a hearing be ordered to consider his
appeal. The [petitioner] alleges that the settlement agreement signed
on December 13, 2000, caused him to waive his rights under [OWBPA] in
that he was required to waive any age discrimination complaint that was
in the [EEO] process. However, the [petitioner] failed to identify any
EEO complaint that he did withdraw, wherein he alleged age discrimination.
The instant matter that was before the [MSPB] was [petitioner's] [r]emoval
from the [a]gency. [Petitioner] did not file an EEO complain[t] alleging
age discrimination in that matter. [Petitioner] and the agency entered
into a settlement agreement on December 13, 2000, regarding [petitioner's]
removal from the agency. Prior to the settlement agreement of December
13, 2000, [petitioner's] attorney and the agency representative agreed
that a pending EEO complaint regarding a different matter, wherein the
[petitioner] did allege age discrimination, would remain undisturbed.
Agency records verify that [petitioner's] claim of age discrimination
is still in the agency's EEO process. [Petitioner] was not required
to withdraw that claim. Thus, beyond [petitioner's] mere assertion,
he has failed to provide any evidence in support of his contentions that
the settlement agreement violated his rights under [OWBPA].
Agency's MSPB Reply Brief (Jan. 30, 2001), at 2.
ANALYSIS AND FINDINGS
Under applicable rules, �[i]ndividuals who have received a final decision
from the MSPB on a mixed case appeal . . . may petition EEOC to consider
that decision.� 29 C.F.R. � 1614.303(a); cf. 29 C.F.R. � 1614.302(a)(2).
That is the case here. Petitioner received a final order from the MSPB
denying his request to review the MSPB administrative judge's decision and
to rescind the relevant settlement agreement. Thus, because petitioner
is appealing a final MSPB ruling, the Commission has jurisdiction to
consider this matter. Cf. 29 C.F.R. � 1614.303(a) (providing that �EEOC
will not accept appeals from MSPB dismissals without prejudice�).<4>
We must decide whether the MSPB erred in refusing to set aside the
settlement agreement in question for violating OWBPA. First, however, we
must address whether this settlement agreement purported to address any
claim(s) of age discrimination in the first place. Petitioner contends
that the settlement agreement required him to withdraw his previous
complaint and the age discrimination allegations it contains, and thus
triggered the application of OWBPA. The agency appears to have argued
the opposite before the MSPB, and to have asserted that the agreement did
not implicate the ADEA (or hence OWBPA) at all. The agency apparently
contended that the agreement was a settlement of petitioner's MSPB appeal
of his removal � not a settlement of his pre-existing complaint which
contained an age claim.
Notwithstanding the positions of the parties, we have a different view
on this matter. It is clear that the parties purported to settle a
mixed case appeal that included allegations of reprisal stemming from
petitioner's earlier filing of (among other things) an age discrimination
complaint. In our opinion, the protections of OWBPA extend to such
ADEA-related retaliation claims. See, e.g., 29 U.S.C. � 623(d) (a
provision of the ADEA explicitly stating that �[i]t shall be unlawful for
an employer to discriminate against any of his employees . . . . because
such individual . . . has opposed any practice made unlawful by [the
ADEA], or because such individual . . . has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding,
or litigation under this chapter�); and 29 U.S.C. � 626(f)(2) (providing
that the OWBPA waiver requirements apply to any settlement of a complaint
alleging age discrimination of any kind prohibited under 29 U.S.C. �
623); see also 29 C.F.R. � 1614.101(b) (holding that it is unlawful for
an agency to retaliate against a person who participates in any stage of
the administrative process under the ADEA); and 29 C.F.R. � 1625.22(a)(4)
(also noting that the waiver provisions of OWBPA �apply to all waivers
of ADEA rights and claims, regardless of whether the employee is employed
in the private or public sector�).
Therefore, despite past agency denials, we believe this settlement
agreement did indeed implicate the ADEA and should have complied with
OWBPA.<5> Under OWBPA, however, a waiver of ADEA claims (such as the
waiver of petitioner's reprisal claim in the instant settlement agreement)
will not be considered knowing, voluntary, and thus valid 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 after the waiver is executed;
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.
Neese v. Department of the Army, EEOC Appeal No. 01954749 (Jul. 9, 1996)
(citing Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June
30, 1994)); see also 29 U.S.C. � 626(f)(2); and 29 C.F.R. � 1625.22(g).
These parameters were not strictly followed in this case. A fatal
flaw in the December 13, 2000 settlement agreement is the absence of
an unequivocal and explicit acknowledgment by petitioner that he was
waiving his reprisal claim under the ADEA, specifically. This alone
is enough to invalidate that portion of the settlement agreement
purporting to resolve this claim.<6> However, the portions of the
agreement attempting to settle reprisal claims raised under Title VII
and/or the Rehabilitation Act may be allowed to stand, since petitioner
has raised no arguments suggesting that these particular waivers are
somehow invalid.<7> See, e.g., Oubre v. Entergy Operations, Inc., 522
U.S. 422, 428 (1998) [emphasis added] (noting that a failure to comply
�with the OWBPA's stringent safeguards [renders a settlement agreement]
unenforceable against [a plaintiff] [only] insofar as it purports to
waive or release [an] ADEA claim� specifically, and that a release could
be �effective as to some claims but not as to ADEA claims�); Commonwealth
of Massachusetts v. Bull HN Information Systems, Inc., 143 F. Supp. 2d
134, 160 (D.Mass. 2001) (acknowledging that �it is at least possible
that a waiver could violate some technical provision of . . . OWBPA and
nevertheless validly waive all non-ADEA claims�); American Airlines,
Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 121 (1st Cir 1998) (indicating
that a ruling regarding the validity of ADEA waivers under OWBPA does
not �automatically dispose of the remainder� of an employee's claims
also purportedly waived in the same release); Long v. Sears Roebuck &
Co., 105 F.3d 1529, 1545 (3rd Cir. 1997), cert. denied, 522 U.S. 1107
(1998) (similarly hinting that any release of non-ADEA claims might not
be invalidated simply because an accompanying release of ADEA claims
does not comport with OWBPA, and remanding to the district court for
a determination on this precise issue); see also Blackwell v. Cole
Taylor Bank, 152 F.3d 666, 673 (7th Cir. 1998) (stating that �[t]here
is no counterpart in Title VII . . . to the Older Workers Benefits
Protection Act,� and that a waiver of a Title VII claim would be �valid
as long as it met the usual criteria for an effective waiver, that is,
as long as it was knowing and voluntary�); Woychik-Brown v. Department of
Agriculture, EEOC Request No. 05960768 (Jul. 16, 1999) (ruling that any
waiver of rights under other [non-ADEA] federal employment discrimination
�statutes is subject to the knowing and voluntary standard based upon
the totality of the circumstances�<8>); cf. Butcher v. Gerberg Products
Co., 8 F.Supp. 2d 307, 317 (S.D.N.Y. 1998) (acknowledging that if a
settlement agreement contained a �severability� or �savings� clause,
the non-ADEA provisions of such agreement could indeed be enforced).
CONCLUSION
We therefore cannot conclude that this settlement agreement should be
enforced insofar as it attempted to resolve the reprisal claim raised
under the ADEA in petitioner's mixed case appeal.<9> It is the decision
of this Commission to DIFFER with the final order of the MSPB implicitly
validating this portion of the agreement. See 29 C.F.R. � 1614.305(c)(2);
cf. Arnold v. Department of the Air Force, EEOC Petition No. 03A10042
(July 26, 2001). Accordingly, we hereby refer this matter back to the
MSPB pursuant to 29 C.F.R. � 1614.305(e). Id.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (V0900)
Your case is being referred back to the MSPB for further consideration
and the issuance of a new decision. You will have the right to file a
civil action in the appropriate United States District Court, based on
the new decision of the MSPB:
1. Within thirty (30) calendar days of the date that you receive
notice of the decision of the Board to concur in this decision of the
Commission; or,
2. If the MSPB decides to reaffirm its original decision, within thirty
(30) calendar days of the date you receive notice of the final decision
of the Special Panel to which your case will then be referred.
You may also file a civil action if you have not received a final
decision from either the MSPB or the Special Panel within one hundred
and eighty (180) days of the date you filed this Petition for Review
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.
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
entitled �Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
August 28, 2002
__________________
Date
1Specifically, the complaint did not �relat[e] to or stem[] from an
action that can be appealed to the Merit Systems Protection Board.� 29
C.F.R. � 1614.302(a)(1).
2The Rehabilitation Act was amended in 1992 to apply the standards
in the Americans with Disabilities Act (�the ADA�) to complaints of
discrimination by federal employees or applicants for federal employment.
3Specifically, the appeal alleged that �an appealable agency action was
affected, in whole or in part, because of discrimination on the basis
of race, color, religion, sex, national origin, handicap or age.� 29
C.F.R. � 1614.302(a)(2). In addition, the MSPB will accept a mixed
case complaint or appeal which alleges that the appealable agency action
was effected because of retaliation for prior protected activity under
Title VII, the ADEA, or Rehabilitation Act. See, e.g., Silva v. National
Credit Union Administration, MSPB No. SF-0752-01-0133-I-1, EEOC Petition
No. 03A10087 (Mar. 7, 2002).
4Our regulations require these types of petitions to be filed within
30 days of the petitioner's receipt of the MSPB's final decision.
See 29 C.F.R. � 1614.303(c). In this case, petitioner got MSPB's final
order on October 4, 2001, but did not file this petition with EEOC until
November 8, 2001 (after the requisite 30 days). Thus, we normally would
decline to accept this petition, since it appears that it was not filed
in a timely manner. However, because the MSPB's final order provided
no guidance whatever on the applicable time frames and procedures for
petitioning EEOC for review of its final order, we will refrain from
strictly enforcing the 30-day deadline here. Cf. Sweatmon v. Department
of the Treasury (Internal Revenue Service), EEOC Petition No. 03A00131
(Mar. 4, 2002).
5Because we find that OWBPA applies to the settlement of mixed case
appeals involving allegations of ADEA-related reprisal, we need not
address whether the specific terms of the settlement agreement in
question here required petitioner to withdraw his initial non-mixed
case complaint (as petitioner contended). If petitioner wishes to
set aside any purported settlement of this non-mixed case complaint
(for failure to comport with OWBPA) but the agency refuses to continue
processing this complaint, petitioner may appeal any such agency refusal
to this Commission at that point. Cf. Runge v. Department of the Army,
EEOC Appeal No. 01941234 (June 30, 1994). For now, however, it appears
(at least from the brief the agency submitted to the MSPB and cited
above), that the agency is not requiring complainant to withdraw his
initial non-mixed case complaint. For this reason, we presume that this
complaint remains open and will be processed properly � or has already
been appropriately processed.
6An agreement will fail to comply with OWBPA even if only one of the
statute's procedural requirements is missing. See, e.g., Butcher
v. Gerberg Products Co., 8 F. Supp. 2d 307, 314-315 (S.D.N.Y. 1998)
(stating that since OWBPA �establishes minimum or threshold requirements,
absolute technical compliance with its provisions is required,� and
that �[t]he absence of even one of the OWBPA's requirements invalidates
a waiver�). In this case, though, we have no proof that the agency ever
advised petitioner in writing to consult an attorney before executing the
agreement (notwithstanding that he actually was represented by an attorney
at the time), or gave petitioner a reasonable amount of time to consider
the agreement, either. The burden is squarely on the shoulders of the
agency to prove that these independent OWBPA requirements were also met.
See 29 U.S.C. � 626(f)(3); see also 29 C.F.R. � 1625.22(h). Since the
agency provided no documentation or argument to convince this Commission
that these other ADEA prerequisites were indeed satisfied, we cannot
conclude that they were. The settlement of petitioner's ADEA retaliation
allegation thus fails to comply with OWBPA on a number of fronts.
7We are explicitly not deciding what the outcome would be here had
petitioner actually argued that the waivers of his Title VII and/or
Rehabilitation Act claims were also invalid.
8This �totality of the circumstances� Title VII and Rehabilitation Act
waiver-validity test stands in sharp contrast to the rigid and mechanical
(if clear) waiver prerequisites under the ADEA. In Brown v. Department of
Agriculture, EEOC Request No. 05960769 (Jul. 16, 1999), we similarly held
that �[w]hen an employee knowingly and voluntarily releases an employer
from liability for Title VII claims with a full understanding of the
terms of the agreement, he is bound by that agreement.� We went on to
state that �[i]n determining whether a release was knowing and voluntary,
the courts look to the totality of the circumstances,� including �[t]he
plaintiff's education and business experience; the amount of time the
plaintiff considered the agreement before signing it; the clarity of
the agreement; the plaintiff's opportunity to consult with an attorney;
the employer's encouragement or discouragement of consultation with an
attorney; and the consideration given in exchange for the waiver when
compared with the benefits to which the employee was already entitled.�
Cf. Swain v. Department of the Army, EEOC Request No. 05921079 (June 3,
1993), at note 7.
9Petitioner is not required at this point to �tender back� any
consideration originally provided by the agency to induce petitioner to
settle this ADEA reprisal claim. Cf. Oubre v. Entergy Operations, Inc.,
522 U.S. 422, 428 (1998) (stating that an employee's �mere retention of
moneys [did not] amount to a ratification equivalent to a valid release
of her ADEA claims, since the retention did not comply with the OWBPA
anymore than the original release did,� and that OWBPA alone �governs the
effect of the release on ADEA claims, and the employer cannot invoke the
employee's failure to tender back as a way of excusing its own failure to
comply� with the dictates of OWBPA). Should petitioner's ADEA-related
retaliation claim ultimately prevail and petitioner be awarded relief
for this claim, however, the agency may have a simultaneous claim for a
reduction of petitioner's award. See 29 C.F.R. � 1625.23(c) (reduction
is discretionary, and never can exceed employee's award or consideration
received for waiver, whichever is less); and Oubre, 522 U.S. at 428
(noting the reduction �may be complex where a release is effective as
to some claims but not as to ADEA claims�).