U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bret E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120160286 Agency No. 4F-900-0020-14 DECISION Complainant filed an appeal with this Commission concerning a purported breach of the January 6, 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 On January 6, 2015, Complainant and the Agency entered into a settlement agreement (identified as a "Last Chance Settlement Agreement") to resolve a matter which had been pursued through the EEO complaint process. The settlement agreement provided, in pertinent part, that the Agency agreed to reduce Complainant's November 10, 2014 Notice of Removal to a time served suspension. The record reflects that there are eight provisions in the settlement agreement with which Complainant was expected to comply. The settlement agreement stated that "failure to adhere to any of the above items will result in the Grievant's removal from the Postal Service for violation of the Last Chance Agreement." By letter to the Agency dated October 15, 2015, Complainant alleged breach. Specifically, Complainant requested that the subject agreement "be set aside and voided because of the duress and coercion that I felt I was under at the time I signed this agreement. The last chance agreement that I signed was set up for the person signing it to fail. There is no person who would have been able to complete the last chance agreement. It did not allow any tardy time. Yet, the time clock always had 30 or more people clocking in at the same time. There is normally a 5 minute leeway due to crowding at the time clock, but I was not allowed that leeway." The instant appeal followed. ANALYSIS AND FINDINGS The Agency did not issue a final decision concerning Complainant's allegation of breach. The Older Workers' Benefit Protection Act (OWBPA) amended the Age Discrimination in Employment Act (ADEA), effective October 16, 1990, and provides the minimum requirements for waiver of ADEA claims. Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30, 1994). To meet the standards of the OWBPA, a waiver is not considered knowing and voluntary unless, at a minimum: (1) the waiver is clearly written from the viewpoint of the complainant; (2) the waiver specifically refers to rights or claims under the ADEA; (3) the complainant does not waive rights or claims arising following execution of the waiver; (4) valuable consideration is given in exchange for the waiver; (5) the complainant is advised, in writing, to consult with an attorney prior to executing the agreement; and (6) the complainant is given a "reasonable" period of time in which to consider the agreement. 29 U.S.C. § 626(f)(2). Id. (citing 29 U.S.C. § 626(f)(2)). The record reflects that the underlying matter which was resolved in the subject agreement was, in part, based on age. Specifically, "age" is listed as one of the bases in Complainant's pre-complaint and formal complaint. In this case, we find that the January 6, 2015 settlement agreement did not comply with the provisions of the OWBPA. Specifically, the agreement does not advise Complainant in writing to consult with an attorney before executing the agreement.. Moreover, the record does not support a finding that Complainant was given a reasonable period of time in which to consider the settlement agreement. Thus, the Commission finds that Complainant's decision to enter into the subject agreement was neither knowing nor voluntary. Therefore, we determine that the agreement is void and reinstates Complainant's underlying complaint. Accordingly, we REMAND this matter to the Agency to resume processing Complainant's informal complaint from the point where processing ceased in accordance with the ORDER below. ORDER The Agency is ORDERED to reinstate the underlying matter which was the subject of the instant settlement agreement, and to resume processing from the point processing ceased within thirty (30) calendar days of this decision becomes final. The Agency shall notify Complainant it has resumed processing the underlying matter. A copy of the Agency's letter of acknowledgement notifying Complainant of the reinstatement of his complaint must be submitted 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 (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), at 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 (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 January 21, 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 0120160286 2 0120160286 6 0120160286