U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bonny R,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120160799 Agency No. FS-2011-00424 & FS-2012-00404 Hearing Nos. 551-2012-00047X & 551-2013-00111X DECISION On January 4, 2016, Complainant filed this appeal from the October 20, 2014 decision of an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ) that became the Agency's final decision and denied her request to revoke a settlement agreement. The appeal is accepted.2 See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. The settlement agreement closed two of Complainant's equal employment opportunity (EEO) complaints alleging violations of 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 (ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND At the time of the events giving rise to her EEO complaints, Complainant was employed by the Agency as a Guidance Counselor, GS-7 at the Columbia Basin Job Corps in Moses Lake, Washington. Believing that the Agency discriminated against her, Complainant filed two EEO complaints, which the Agency separately investigated. She requested hearings on both complaints. On August 12, 2015, after completing a hearing on the first EEO complaint and before starting a hearing on the second, Complainant and the Agency reached a settlement, which was memorialized before the AJ and transcribed by a certified court reporter. Specifically, in its entirety, the oral settlement agreement memorialized was: The agreement is the Agency shall pay the Complainant the sum of $18,700 in a lump sum to be paid within 60 days of final approval of the settlement. In exchange, [Complainant] withdraws both complaints, as referenced, with the understanding that this is a confidential agreement. It's a matter of public record that this case was settled. However, the terms of the settlement agreement will remain confidential. This was related by Complainant's now former non-attorney representative and transcribed by the court reporter. In response, the Agency's representative, a Human Resources Management Employee Relations Specialist uttered "That's it" and confirmed this was the Agency's understanding. The AJ offered to wait 30 minutes so the parties could reduce the oral agreement to writing. The Agency's representative, a Human Resource Management Employee Relations Specialist replied "...I cannot sign the agreement since I do not have settlement delegation..." and indicated he would arrange for the individual with authority to sign the agreement for the Agency to do so. Later the same day Complainant emailed the AJ asking if she could "reverse" the oral settlement agreement and relating she felt coerced by her representative into settling and would greatly appreciate the opportunity to continue her complaints. On August 17, 2015, the Agency gave Complainant a written draft version of the oral settlement agreement. The draft contained terms that were significantly broader than those memorialized before the AJ. For example, the draft written version, in addition to the two EEO complaints, would close all of Complainant's claims in all forums relating to her employment with the Agency, both filed and unfiled up to the effective date of the settlement agreement, and prohibit Complainant from making any disparaging remarks to anyone regarding her claim. Complainant did not sign the draft. On August 28, 2015, the AJ dismissed Complainant's complaints, citing the August 12, 2015 oral settlement agreement. Charactering Complainant's August 12, 2015 email to him as an inquiry, the AJ observed that on August 14, 2015, he verbally told Complainant that the EEOC considers settlements on the record valid and binding, but under the ADEA she had seven days to revoke the portion of the settlement agreement that closed her age claims. The AJ found that thereafter, Complainant took no action to revoke the settlement agreement. Complainant then emailed the AJ on September 16, 2015, writing that when she asked to reverse the settlement agreement on August 12, 2015, her intention was to request revocation, and she wanted a hearing. On October 20, 2015, the AJ denied Complainant's request to revoke the settlement agreement. The AJ found that Complainant's September 16, 2015 revocation request was beyond the seven-day time limitation. Complainant then filed the instant appeal. Complainant argues that the settlement agreement is not binding because she did not sign and revoked it. In opposition to the appeal the Agency writes that it accepts and agrees with the AJ's October 20, 2015 order denying Complainant's request both to revoke the settlement agreement and to open her closed complaints, and incorporates the AJ's order. ANALYSIS Validity of the Settlement Agreement under Title VII and the EPA (Claims of discrimination based on sex and reprisal for prior protected activity under Title VII and the EPA) When coercion occurs during the formation of the contract, assent to the agreement is impossible, and the Commission will find the contract void. This 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 the threat. Such a threat may be expressed, implied or inferred from words or conduct, and must convey an intention to cause harm or loss. Cannella v. Department of Veterans Affairs, EEOC Appeal No. 01995444 (December 5, 2000). Here, Complainant contends that her former representative coerced her into entering into the settlement agreement by telling her she was gambling and could lose everything if she did not settle, and she should take it and run. These facts do not meet the standard of coercion. Where an otherwise valid settlement agreement is entered into orally before an AJ and is transcribed by a court reporter, it can be binding under Title VII. Acree v. Department of the Navy, EEOC Request No. 05900784 (October 4, 1990). The Agency Employee Relations Specialist who entered into the oral settlement agreement with Complainant explicitly and openly stated when it was transcribed that he did not have settlement delegation, meaning he did not have authority or apparent authority to enter into a settlement agreement for the Agency. Given, this, had the Agency wished to rescind and not implement the oral settlement agreement, it would likely have prevailed had Complainant sought enforcement thereof. On the same day of the oral settlement agreement Complainant emailed the AJ asking if it could be reversed and added she would greatly appreciate proceeding with her complaints. The AJ did not give her the option to do so on her Title VII and EPA claims. Complainant refused to accept the oral settlement agreement in her further communications and declined to sign the written draft settlement agreement. Given all this, we find that the oral transcribed settlement agreement is invalid. The record does not reflect whether the Agency sent payment to Complainant of $18,700, nor if it did whether she accepted payment. If Complainant received and accepted such payment, the Agency may demand that she tender back to it the sum she received before her Title VII and EPA claims in her two complaints are reinstated. Montgomery v. Department of Agriculture, EEOC Appeal No. 01961506, modified on other grounds, EEOC Request No. 05970693 (Apr. 19, 2000). Validity of the Settlement Agreement under the ADEA (Claims of discrimination based on age and reprisal for prior protected activity under the ADEA3) As an initial matter, the settlement agreement is not valid under the ADEA for the same reasons it was not valid under Title VII and the EPA. However, a further analysis in in order. The OWBPA, which amended the ADEA effective October 16, 1990, provides that a waiver of ADEA claims 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 wavier; (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.4 Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing 29 U.S.C § 626(f)(2)). We need not decide whether Acree applies when OWPBA is an issue. Here, the oral transcribed settlement agreement does not meet, at a minimum, element 2 of the OWBPA. The subsequent draft written settlement agreement does not cure this because Complainant refused to sign off on this waiver term, nor did both parties execute the draft written settlement agreement. Tera B. v. Department of the Treasury, EEOC Appeal No. 0120140630 (Jan. 19, 2016). Further, the record does not show that the Agency satisfied element 5 of the OWBPA - that Complainant was advised in writing to consult an attorney before executing (here entering into) the agreement. Regarding her ADEA claim, under the OWBPA Complainant's receipt of any benefits of the settlement agreement and failure to tender them back to the Agency does not operate to waive her ADEA claim since the statutory requirement of a knowing waiver was not met. Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426 - 28 (1998). This statutory based legal principle only applies to the ADEA. Accordingly, Complainant is not required to tender back any money she was sent and accepted under the invalid settlement agreement before her ADEA claims are reinstated. If Complainant eventually prevails on her complaints, the Agency may seek to reduce her award by any money she received under the settlement agreement. McMahon v. Department of Homeland Security (Customs and Border Protection), EEOC Appeal No. 0120112007 (Apr. 11, 2012).5 The AJ's Order, which became the Agency's final decision, is REVERSED. ORDER Within thirty (30) calendar days of the date of this decision, the Agency shall submit a request for a hearing on the two referenced complaints herein on behalf of Complainant to the Hearings Unit of the EEOC's Seattle Field Office. The hearing request must include a brief explanation that it is being made pursuant to this decision, and be accompanied with this decision. The AJ shall process the two complaints from the point processing ceased and in accordance with this decision, and thereafter the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110(a). A copy of the letter requesting a hearing must be sent to Complainant and 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 January 25, 2018 __________________ 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 Since the Agency did not issue a final decision giving Complainant appeal rights, we deem her appeal to be timely filed. 3 Claims of reprisal for prior ADEA EEO activity fall within the ambit of the ADEA and the OWPBA. Campo v. United States Postal Service, EEOC Petition No. 03A20012 (Aug. 27, 2002). 4 The Agency wrote that under the ADEA, Complainant had seven-days to revoke the portion of the settlement agreement that closed her ADEA claims. We note that the applicable portion of the OWBPA (ADEA), 29 U.S.C. § 626(f)(2) [Section 7(f)(2)] provides in part that a waiver of age discrimination claims under the ADEA is not considered knowing and voluntary unless, at a minimum the Complainant is given "reasonable" time to consider the agreement. This provision does not set out specific time limits on what is reasonable. Smith v. Department of Veterans Affairs, EEOC Appeal No. 0120130700, at fn. 2 (May 9, 2013). We find that Complainant revoked the ADEA portion of the settlement agreement within a reasonable amount of time. 5 We remind the parties that compensatory damages and attorney fees are not available under the ADEA. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160799 2 0120160799