U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lelah T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120151856 Agency No. 1B-102-0007-15 DECISION Complainant filed an appeal with this Commission regarding the alleged breach of a February 2, 2015 settlement agreement. The Commission accepts the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Mail Handler at the Morgan Processing & Distribution Center, in New York, New York. Believing that she was subjected to age discrimination, Complainant contacted an EEO Counselor. On February 2, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (A) The parties agree to treat each other with dignity, mutual respect, and professionalism both in the matter and style of their interaction and communication. (B) No later than March 2, 2015, the Manager Distribution Operations (MDO) will take a sensitivity course. (C) No later than March 2, 2015, MDO will have a meeting with [Complainant] and her shop steward to discuss work place concerns. On April 22, 2015, Complainant filed an appeal with this Commission alleging breach. Specifically, addressed to "Manager EEO Compliance Appeals", Complainant alleged that the Agency has failed to provide documentation showing that sensitivity training had been given to MDO. Further, she contended that the Agency has failed to treat her with respect and dignity. The record indicates that Complainant's filing was made with the intention of notifying the Agency of the allegation of breach, in accordance with 29 C.F.R. § 1614.504(a).2 The Agency argues that Complainant's appeal is premature. However, on July 2, 2016, the Agency issued a decision on the matter. Therefore, in the interest of judicial economy we decline to dismiss the appeal. In its decision, with respect to provision (A), the Agency found that the requirement to treat each other "with dignity and respect" did not provide any consideration and was unenforceable. Complainant was advised to seek counseling if she believed she was being subjected to new claims of discrimination. Regarding provision (B), the Agency stated that sensitivity training was completed on March 15, 2015. Next, however, the Agency turned its focus to the Complainant's underlying claims of age discrimination. The Agency asserted that the subject settlement agreement did not contain the rights under the Age Discrimination in Employment Act (ADEA) and Older Workers Benefits Protection Act (OWBPA). We note, that in such instances, settlement agreements can be voided and the underlying complaint reinstated. Here, however, Complainant did not specify whether she was seeking specific performance or reinstatement,. The Agency provided Complainant with a choice: (1) reform the agreement by voiding provision (A) and agree that the Agency has substantially complied with provision (B) when the MDO completed training on March 15, 2015; or (2) void the entire agreement and continue processing the underlying complaint. 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). However, the plain meaning rule loses its relevance when a settlement agreement lacks adequate consideration because such agreements are unenforceable. See Collins v. U.S. Postal Service, EEOC Request No. 05900082 (April 26, 1990) (a settlement agreement that was not based upon adequate consideration was unenforceable). Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Service, EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Dep't of Health & Human Serv., EEOC Request No. 05910888 (March 11, 1992)). In provision (A), the Agency is obligated treat Complainant with "dignity, mutual respect, and professionalism". The term is too vague to be enforced and provides Complainant with nothing more than she was already entitled to as an employee. A review of the settlement agreement appears to reflect that the (typed) language of provision (A) was boilerplate, while provisions (B) and (C) are handwritten. The Agency is advised to avoid using such a term in the future. As noted above, Complainant initiated the EEO process regarding claims of age discrimination. The Older Workers' Benefit Protection Act (OWBPA) amended the ADEA, effective October 16, 1990, and provides the minimum waiver requirements for ADEA claims. To meet the standards of the OWBPA, if applied to the federal administrative process, a waiver of a complainant's rights to pursue relief for his claims of discrimination based on age, such as that contained in the settlement agreement at issue herein, would not be considered knowing and voluntary unless at a minimum: the waiver is clearly written, from the viewpoint of the employee; the waiver specifically refers to rights or claims under the ADEA; the employee does not waive rights or claims following execution of the waiver; valuable consideration is given in exchange for the waiver; the employee is advised in writing to consult with an attorney prior to executing the agreement; and the employee is given a "reasonable" period of time in which to consider the settlement agreement. 29 U.S.C. § 626(f)(2). See Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30, 1994). Complainant was silent regarding the OWBPA's relevance to the subject settlement agreement. We specifically note that the Agency raised the assertion that the February 2, 2015 settlement agreement does not comply with the provisions of the OWBPA. We note that the subject agreement does not state that Complainant is waving her rights under the ADEA, and Complainant was not advised in writing to consult with an attorney before executing the agreement. The record does not reflect that Complainant was given a reasonable period of time in which to consider the settlement. Therefore, we find that the entire agreement is void. The Agency is ordered to reinstate the underlying complaint from the point where processing ceased.3 CONCLUSION Accordingly, this matter is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to resume processing of the underlying complaint from the point where processing ceased. The Agency shall acknowledge to Complainant that it has reinstated and resumed processing of the underlying complaint. A copy of the Agency letter of acknowledgement must be sent to the Compliance Officer as referenced below. 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 (M0416) 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations October 19, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The settlement language informed Complainant to "notify the Manager EEO Compliance and Appeals located in my area, in writing, within 30 calendar days of the alleged noncompliance." We note, however, that the agreement did not provide contact information. 3 If a complainant's complaint is reinstated for further processing, then the parties must be returned to the status quo at the time that the parties entered into the settlement agreement, which requires that a complainant return any benefits received pursuant to the settlement agreement. O'Farrell v. U.S. Postal Service, EEOC Petition No. 04920001 (February 28, 1992). In the instant case, as the only action taken by the Agency was to provide training to the MDO there are no benefits for Complainant to return prior to reinstating her complaint. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151856 2 0120151856