U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merle S,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120152901 Agency No. 1G-761-0011-15 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 23, 2015, 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. ISSUE PRESENTED Whether the Agency is in breach of the settlement agreement which resolved the instant complaint? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Fort Worth, Texas Processing and Distribution Center. Believing that the Agency subjected him to unlawful age discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 5, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: [Complainant] will be paid two-hundred, fifty dollars, ($250.00) in compensation. In addition, sick leave taken on February 12, 2015 for 2.4 hours and sick leave taken on February 13, 2015 for 8 hours for a total of 10.4 hours will be restored. The documentation will be submitted within 10 days of all parties signing this agreement. By letter to the Agency in May 2015, Complainant alleged that the Agency breached the settlement agreement. Specifically, Complainant alleged that on May 5, 2015, the Agency's EEO Alternative Dispute Resolution (ADR) Specialist contacted him without contacting his representative, which was required. Complainant further stated that as of May 17, 2015, he had not received "anything which has value" from the Agency. Complainant requested that his underlying EEO complaint be reinstated. In an affidavit dated October 9, 2015, Complainant also stated that he believed that the settlement agreement was breached because the Agency only paid him $168.37, which was less than the agreed upon "lump sum." Complainant also stated that the Agency also breached the agreement by failing to restore 10.4 hours of leave within ten days of the execution of the agreement. Complainant requested that the agreement be rescinded as the remedy for the breach. In its October 23, 2015 letter of determination, the Agency concluded that it did not breach the settlement agreement because it paid Complainant $168.37, which represented the net amount of $250.00 minus the deduction of $81.63 in withholdings. The Agency further concluded that it complied with the agreement by restoring the agreed-upon sick leave to him in Pay Period 14 of 2015. CONTENTIONS ON APPEAL On appeal, Complainant maintains that the settlement agreement is "null and void," and his complaint should be reinstated from the point processing ceased. The Agency requests that we affirm its finding that it did not breach the agreement. 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). In this case, the Agency agreed to pay Complainant $250 in compensation. The Agency also agreed to restore a total of 10.4 hours of sick leave by submitting the proper documentation for restoration within 10 days of the date of the execution of the agreement. The Agency maintains that it paid Complainant only $168.37 because it deducted $81.63 in withholdings from the amount. Upon review, we note that the agreement does not indicate that the $250 represents back pay or is otherwise subject to withholdings. As such, we find that the agreement obligated the Agency to pay Complainant $250, without deducting any withholdings. Therefore, we find that the Agency did not comply with this term of the agreement. Additionally, the record does not reflect when the documentation was submitted to restore Complainant's leave. However, the record reveals that 10.4 hours of leave was restored to Complainant during Pay Period 14 of 2015. As such, we are persuaded that the Agency substantially complied with this portion of the agreement. Nevertheless, we note that the agreement purported to settle an age discrimination claim. The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against individuals age 40 and older because of age. 29 U.S.C. § 623(a). In 1990, Congress amended the statute by passing the Older Workers Benefit Protection Act (OWBPA). OWBPA § 201, 104 Stat. 983. As the Supreme Court has pointed out, the purpose of the statute is "clear from its title." Oubre v. Entergy Ops., 522 U.S. 422, 427 (1998). It was "designed to protect the rights and benefits of older workers . . . via a strict, unqualified statutory stricture on waivers." Id.; see also S. Rep. No. 263, 101st Cong., 2d Sess. 31 (1990) (Senate Report) (stating that "the Committee intends that the requirements of [the statute] be strictly interpreted to protect those individuals covered by the Act"), reprinted at 1990 U.S.C.C.A.N. 1509, 1537. In essence, "[t]he OWPBA governs the effect under federal law of waivers or releases on ADEA claims and incorporates no exceptions or qualifications." Oubre, at 427. In keeping with this purpose, the OWBPA provides that an individual "may not waive" an ADEA claim "unless the waiver is knowing and voluntary." 29 U.S.C. § 626(f)(1). However, unlike non-age claim waivers, the OWBPA explicitly defines "knowing and voluntary" through a list of required actions that must be undertaken before waiving age claims. Thus, the OWBPA "sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law's generalized requirements." Oubre, 522 U.S. at 427. Specifically, the statute explains that waivers "may not be considered knowing and voluntary" unless, "at a minimum," they satisfy enumerated requirements found at 29 U.S.C. § 626(f)(1)(A)-(G).2 The requirements for waiver/release of ADEA claims are: A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate; B) the waiver specifically refers to rights or claims arising under this Act; C) the individual does not waive rights or claims after the date the waiver is executed; D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual is already entitled; E) the individual is advised in writing to consult with an attorney prior to executing the agreement; F) (i) the individual was given a period of at least 21 days within which to consider the agreement; or (ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement; and G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired. 29 U.S.C. § 626(f)(1)(A)-(G).3 Applying OWBPA's requirements to this agreement, we note that the agreement in this case fails to meet the requirement of advising Complainant in writing to consult with an attorney prior to executing the agreement.4 Additionally, the agreement does not state that Complainant was given at least 21 days to consider the agreement, nor did it advise Complainant that he had at least seven days to revoke the agreement after its agreements. Therefore, all OWBPA requirements were not met in this case. As such, we find that the waiver does not constitute a valid waiver of Complainant's age discrimination claims; thus, we order the Agency to reinstate Complainant's complaint. See Daniels v. U.S. Postal Serv., EEOC Appeal No. 0120103252 (May 31, 2012) (agreement purporting settlement of age claim void where it did not mention Complainant's rights or claims under the ADEA, there was no indication that he was advised in writing to consult with an attorney, there was no indication that he was given a reasonable period of time in which to consider the agreement, and it did not state that complainant had seven days to revoke the agreement after he signed the agreement); see also Oubre, 522 U.S. at 428 (failure to comply with the OWBPA's stringent waiver safeguards will void the settlement agreement only with regard to the ADEA claims); Sheehy v. National Security Agency EEOC Request No. 0520100403 (Feb. 27, 2012). Finally, we note that under the OWBPA, Complainant's receipt of some benefits under the settlement agreement does not result in the successful waiver of her ADEA claim because the statutory requirements remain unfulfilled here. Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426 - 28 (1998). Requiring Complainant to tender back benefits received under the agreement would undermine the OWPBA, and hence, we will not require it. See Smith v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130700 (May 9, 2013), citing Sheehy v. National Security Agency, EEOC Request Nos. 0520100403 (Feb. 27, 2012) (waiver of ADEA claims under settlement agreement voided under the OWBPA, but the settlement agreement waiver was not defective as to Title VII and Rehabilitation Act claims. To go forward with her ADEA claims Complainant was not required to tender back benefits received under settlement agreement, including a retroactive promotion, back pay, and a lump sum payment); McMahon v. Department of Homeland Security, EEOC Appeal No. 0120112007 (April 11, 2012) (waiver of ADEA claims under settlement agreement voided under the OWBPA, but not her Title VII claims. To go forward with her ADEA claims, Complainant was not required to tender back benefits received under the settlement agreement, including an offer of employment). Nevertheless, if Complainant eventually prevails on his complaint, the Agency may seek to reduce his award by the benefits he received under the purported settlement agreement. See Sheehy, EEOC Request No. 0520100403, and McMahon, EEOC Appeal No. 0120112007. CONCLUSION Accordingly, the Commission VACATES the Agency's letter of determination and REMANDS this matter to the Agency for further processing consistent with this decision and the ORDER set forth below. ORDER (E1016) The Agency is ordered to process the remanded complaint in accordance with 29 C.F.R. § 1614.108 et seq., from the point processing ceased. The Agency shall acknowledge to the Complainant that it has received the remanded complaint within thirty (30) calendar days of the date this decision was issued. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 10-05-2017 __________________ 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 Employers, as the party asserting the validity of the waiver, bear the burden of demonstrating that the enumerated OWBPA requirements are met. 29 U.S.C. § 626(f)(3). 3 EEOC regulations provide that OWBPA waiver requirements "apply to all waivers of ADEA rights and claims, regardless of whether the employee is employed in the private or public sector, including employment by the United States Government." 29 C.F.R. §1625.22 (a)(4). 4 The agreement states that Complainant was advised of his right to seek the advice of an attorney prior to signing the agreement. However, the requirements of the OWBPA are more rigorous. The OWBPA requires the Agency to advise employees in writing to consult with an attorney prior to executing a waiver. In this case, there is no evidence the Agency advised Complainant in writing to consult with an attorney before signing the waiver. See A Hester S. v. EEOC, EEOC Appeal No. 0120121983 (Oct. 24, 2016) (Agreement's claim that Complainant had reasonable amount of time to exercise right to consult private counsel insufficient under the OWBPA); see also Amaya-Brown v. Dep't of the Army, EEOC Appeal 0120093331 (Jan. 29, 2010) (Agency met OWBPA requirements when Complainant was advised in writing to consult with an attorney prior to executing the agreement). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152901 2 0120152901