U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington D.C. 20013 Russ B.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency. Request No. 0520170236 Appeal No. 0120162041 Agency No. 16-56-28 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120162041 (February 7, 2017). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The Agency's request for reconsideration is DENIED; however, the Commission's ORDER is MODIFIED. BACKGROUND During the relevant period, Complainant worked for the Agency as a GS-12 Patent Examiner. On or about September 2, 2015, the Agency proposed removing Complainant from employment. On February 10, 2016, Complainant and the Agency entered into a Performance Abeyance, or "Last Chance," Agreement. The agreement states that a Deciding Official proposed removing Complainant on September 2, 2015, but later determined that, although removal was warranted, Complainant would be given an additional opportunity to demonstrate acceptable performance. Further, the agreement states, in pertinent part: 1. PARTIES. The parties to this Abeyance Agreement (Agreement), [Complainant] (Employee), as represented by the Patent Office Professional Association (POPA/Union), and the U.S. Patent and Trademark Office (Agency/USPTO), hereby voluntarily enter into this Agreement to resolve all existing matters concerning the Agency's proposal to remove Employee from the Federal Service for Unacceptable Performance. By this Agreement, the parties resolve all disputes between them concerning the Agency's proposal to remove Employee from the Federal Service for Unacceptable Performance, of which Employee or the Union knew or should have known, regardless of the forum, in existence on the date that Employee signs this Agreement. This Agreement does not encompass any dispute which arises following the date that Employee signs this Agreement, except as noted in Paragraphs 2 and 3, below. * * * 2. b. WITHDRAWAL. Employee und Union withdraw, with prejudice, any and all existing Individual grievances, appeals, complaints, and causes of action against the Agency relating to the Agency's proposal to remove Employee from the Federal service, with no right to raise these issues again. This withdrawal provision will take effect on the effective date of this Agreement, and will serve to withdraw the aforementioned matters. This withdrawal includes but is not limited to a release of any right to administrative, judicial, or congressional relief, or any other type of relief, or of any claim to back pay, attorney's fees and costs, or any other type of compensation except what is specifically set forth in paragraph 3, below. c. WAIVER. Employee and the Union hereby waive, release, and forever discharge the Agency, its employees, agents, and representatives (in their official and/or personal capacities) from any existing individual claims, demands, complaints, or causes of action in existence on the date Employee signs this Agreement which Employee or the Union has, could have, or may have brought against the Agency relating to the Agency's proposal to remove Employee from the Federal service for Unacceptable Performance. Specifically, Employee and the Union voluntarily waive all individual complaint [sic], appeal and grievance rights on those issues in existence on the date Employee signs this Agreement, whether brought under the negotiated grievance procedure between the Agency and POPA, before the Merit Systems Protection Board, the Equal Employment Opportunity Commission, or other forum, judicial, or administrative, Employee and the Union waive any and all rights and claims arising under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., as amended, the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., as amended, and the Age Discrimination in Employment Act, 29 § U.S.C. 633a et seq., as amended by the Older Workers' Benefit Protection Act, in existence on the date Employee signs this Agreement. This release includes, but is not limited to, a release of any existing right to administrative, judicial, or congressional relief, or any other type of relief, including but not limited to a claim for reinstatement, back pay, benefits, attorneys' fees and costs, or any other form of compensation, except what is specifically set out in Paragraph 3, below. Employee will retain appeal rights and the Union will retain grievance rights only on the issue of whether the parties complied with the terms and conditions of this Agreement. By entering into this Agreement, Employee does not waive EEO rights or EEO claims that may arise after the date Employee signs this Agreement. Additionally, the agreement states Complainant's removal would be held in abeyance for two years from its effective date, subject to Complainant's compliance with each of its terms and conditions. The agreement also states that the parties' signature reflected that they agreed with and had read and understood the agreement, and had entered into the agreement with full knowledge of the consequences, voluntarily, and without any coercion. Formal EEO Complaint On April 19, 2016, Complainant a formal EEO complaint in which he alleged that the Agency subjected him to harassment and discrimination on the bases of age (born in September 1960) and race (African American) when: 1. On September 19, 2014, and ongoing, Complainant's supervisor (S1) began to return his cases for conducting improper searches; 2. On January 13, 2016, Complainant became aware that S1 was reviewing his work in a different manner than that of his coworkers; 3. On unspecified dates, S1 never showed Complainant how to conduct a proper search despite his request for such assistance; S1 returned his cases for improperly rejecting claims without providing him with any criteria for properly rejecting claims; he received an oral warning; he received a written warning; he received a notice of proposed removal; and he received an abeyance agreement (Last Chance Agreement); 4. On February 10, 2016 and ongoing, S1 failed to provide Complainant with proper instruction, effective assistance, and coaching and/or mentoring to help him pass the abeyance agreement; and 5. On March 24, 2016, S1 charged Complainant with committing an error regarding allowance, even though the allowance is not a criterion for his grade level. Final Agency Decision On May 20, 2016, the Agency issued a final decision (FAD) dismissing Complainant's complaint. Specifically, the Agency dismissed claims 1 - 3 pursuant to pursuant to 29 C.F.R. § 1614.107(a)(1), as well 29 C.F.R. § 1614.504(a), on the basis that these claims occurred prior to the execution of the Last Chance Agreement and were settled pursuant to the terms of the agreement. Alternatively, the Agency also dismissed claims 1, 2, and 3 pursuant to 29 C.F.R. § 1614.107(a)(5), on the basis that these matters are moot because of the Last Chance Agreement. Further, the Agency dismissed claims 4 and 5 pursuant to 29 C.F.R. § 1614.107(a)(1), on the basis that these matters failed to state a claim. Regarding claim 4, the Agency reasoned that this matter did not render Complainant "aggrieved" under EEO regulations, and that claims 4 and 5 were not actions severe or pervasive enough to constitute a hostile work environment. Additionally, with regard to claim 4, the Agency determined that Complainant did not establish a prima facie case of harassment because there was "no allegation of any unwelcome verbal or physical conduct, epithets or foul language, or direct or indirect communication involving Complainant's race or age, and none of the allegations of harassment complained of are based on any statutorily protected classes." The Agency concluded that Complainant's allegations merely involved his supervisor's "legitimate work related criticism about his performance, and general assertions that his supervisor has not provided him with proper instructions, effective assistance, coaching and/or mentoring, but does not demonstrate that his supervisor's actions were based on his race or age." The Agency also concluded that the claim that S1 charged him with committing errors involved actions that were within the scope of S1's providing management and direction regarding his work product, and is not actionable harassment. The Agency further found that Complainant did not establish harm or loss to the terms, conditions, or privileges of employment with regard to the requirements of the Last Chance Agreement because he "survived" its requirements and remained employed by the Agency at the time of the issuance of the FAD. On June 6, 2016, Complainant timely appealed the Agency's dismissal to the Commission. Commission Decision in Appeal No. 0120162041 In the previous decision, the Commission reversed the Agency's dismissal of Complainant's complaint. Specifically, the Commission found that, although the Agency dismissed claims 1 - 3 for stating the same claims raised by a February 10, 2016, Last Chance Agreement, the record did not contain a copy of any prior EEO complaints that were purportedly resolved by the agreement, and there was no indication that claims 1 - 3 stated the same matters raised by Complainant in a prior EEO complaint.2 Additionally, the Commission found that claims 1 - 3 state a claim because they involve sufficient personal loss or harm to Complainant's terms, conditions, or privileges of employment. Regarding claims 4 and 5, the Commission determined that the Counselor's Report reflected that Complainant was alleging "many more incidents of alleged harassment beyond the ones specifically identified in" his formal complaint. The Commission noted that, as a remedy, Complainant requested in the Counselor's Report that the harassment cease and to be transferred to another supervisor with a new Last Chance Agreement. The Commission concluded that, given the breadth of Complainant's allegations, and considering the incidents together, he asserted actions that were sufficiently pervasive to state a cognizable claim of harassment under EEO regulations. Consequently, the Commission remanded Complainant's complaint for further processing. Agency's Reconsideration Request In its request for reconsideration, the Agency contends that the Commission erred in our previous decision because claims 1, 2, and 3 should be dismissed as matters barred by the Last Chance Agreement. The Agency maintains that Complainant validly waived any potential claims he may have had arising out of his employment relationship prior to the date of the agreement, but our previous decision mischaracterized the Agency's dismissal as based on the portion of 29 § 1614.107(a)(1) that provides for dismissal of claims that "state the same claim" as previous complaints. The Agency maintains that the dismissal of claims 1, 2, and 3 was based on the portion of 29 § 1614.107(a)(1) that provides dismissal of claims that "fail to state a claim." The Agency argues that allowing Complainant to proceed with claims 1, 2, and 3, even though they involve matters that arose prior to the signing of the agreement, would effectively bar the Agency from utilizing an effective means for resolving disputes. Regarding claims 4 and 5, the Agency contends that these matters should be dismissed for failure to state a claim because they allege nothing more than normal actions taken by a supervisor in directing an employee, and that the Commission's reversal of its dismissal of these claims was a clear misapplication of fact and law. ANALYSIS AND FINDINGS Scope of the Agreement As a preliminary matter, we note that the settlement agreement at issue in this case was executed on February 10, 2016. As such, the agreement predates Complainant's April 19, 2016, formal EEO complaint. Moreover, we note the agreement does not reference an EEO case number and was reached outside the EEO process. However, "WAIVER" provision 2c of the agreement states that Complainant waives, releases, and forever discharges the Agency from any causes of action that Complainant could or may have brought against the Agency related to its proposal to remove him from employment. The provision further states that Complainant did not waive EEO rights or claims that may arise after the date Complainant signed the agreement. Consequently, we find that agreement constitutes a waiver or release of Complainant's instant EEO claims related to his removal that occurred before the execution of the agreement; that is, claims 1 - 3. Age Discrimination The Agency dismissed claims 1-3, including the age discrimination allegations, on the basis they were waived through the Last Chance Agreement. Upon review of this matter, we note that 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).3 The requirements for waiver/release4 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).5 Recently, the Commission held that OWBPA waiver requirements apply to age discrimination claims that had not yet been filed at the time a waiver/release was executed. Hester S. v. EEOC, EEOC Appeal No. 0120121983 (Oct. 24, 2016). Thus, although Complainant's complaint was filed after the waiver was executed, the waiver at issue here must comply with the requirements of the OWBPA to validly waive age claims involving matters that occurred before the execution of the agreement. Applying OWBPA's requirements to this waiver, we note that the waiver fails to meet the requirement of specifically referring to rights or claims arising under the ADEA. Additionally, the waiver does not state that Complainant was advised in writing to consult with an attorney prior to executing the agreement.6 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, Complainant's age claims must be reinstated by the Agency. 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). Thus, we find that our previous decision did not err in reversing the Agency's dismissal of claims 1, 2, and 3 with respect to alleged age discrimination. Because claims 1, 2, and 3 were not validly waived with respect to alleged age discrimination, we find that Complainant's complaint consists of a single, interrelated claim that he was subjected to an ongoing hostile work environment based on age. We also determine that, considering all of the alleged incidents as an overall claim of harassment, the alleged actions are severe enough to constitute an actionable claim of hostile work environment based on age. Therefore, we further find that our previous decision did not err when it reversed the Agency's dismissal of claims 4 and 5 because these matters are a part of Complainant's overall, viable age-based harassment claim. Race Discrimination Claims 1, 2, and 3 Regarding Complainant's race discrimination claims, claims 1, 2, and 3 essentially pertain to Complainant's claim that he was not provided with proper supervisory guidance, which resulted in the issuance of warnings, a proposed removal, and a Last Chance Agreement. Hence, claims 1, 2, and 3 are matters related to Complainant's September 2015 proposed removal. The record further reveals that these matters predated the execution of the agreement. As such, we find that Complainant waived claims 1, 2, and 3 as it pertains to alleged race discrimination, and therefore, the Agency properly dismissed these matters. Claims 4 and 5 Regarding claims 4 and 5, Complainant alleged that beginning February 10, 2016, S1 failed to provide him with proper instruction, effective assistance, coaching and/or mentoring to help him pass the Last Chance Agreement, and on May 24, 2016, charged him with committing an error regarding allowance. We determine that these matters are related to Complainant's ability to meet the requirements of the Last Chance Agreement, and ultimately retain his employment with the Agency. As such, we find that these claims concern sufficient harm or loss to the conditions, terms, or privileges of Complainant's employment to render him aggrieved. Because we find these matters are cognizable claims, we find that our previous decision did not err when it reversed the Agency's dismissal of these race discrimination claims (claims 4 and 5). We note that the Agency also maintains that claims 4 and 5 should be dismissed because he did not establish a prima facie case of harassment through allegations of physical conduct, epithets, or racial comments; charging Complainant with committing error was within the scope of S1's duty to manage and direct his work product; and Complainant "survived" the requirements of the Last Chance Agreement and remained employed at the time of the issuance of the FAD. This analysis addresses the merits of Complainant's harassment claim without the proper investigation required by EEO regulations and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim. See Lexie T. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120171268 (May 16, 2017). Complainant's Removal Finally, we note that, on appeal, Complainant reported that he was removed from the Agency on June 24, 2016. Because claims cannot be prospectively waived, Complainant's effectuated removal or any other actions that occurred after the execution of the agreement were not settled by the Last Chance Agreement, and therefore not precluded by the waiver. In fact, the record reveals that, on July 29, 2016, Complainant filed a separate EEO complaint (Agency No. 16-56-91) regarding his effectuated removal, which is not addressed herein. The record reflects that the Agency dismissed Agency No. 16-56-91 on August 16, 2016, and that Complainant did not appeal this action to the Commission. CONCLUSION After reconsidering the previous decision and the entire record, the Commission finds that the Agency's request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. There is no further right of administrative appeal on the decision of the Commission on this request. However, the Commission on its own motion MODIFIES our previous decision. The portion of our previous decision reversing the Agency's dismissal of claims 1, 2, and 3 of Complainant's race discrimination/harassment claims is VACATED. The Commission REMANDS Complainant's age discrimination claims 1, 2, 3, 4, and 5, and race discrimination/harassment claims 4 and 5 to the Agency for further processing in accordance with this decision and the ORDERS below. ORDER The Agency shall undertake the following actions: 1. The Agency is ordered to process Complainant's age discrimination claims 1, 2, 3, 4, and 5, and race harassment/discrimination claims 4 and 5 in accordance with 29 C.F.R. § 1614.108. 2. The Agency shall acknowledge to the Complainant that it has received the aforementioned remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 (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). _____________________________ Bernadette B. Wilson's signature Carlton M. Hadden, Director Office of Federal Operations 12-21-2017 __________________ 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 Our previous decision found that there was nothing in the record indicating that claims 1 - 3 alleged the same issues contained in Complainant's previous EEO complaint. However, the Agency dismissed claims 1 - 3 on the bases that they failed to state a claim and were moot, and not on the basis that they stated the same claim raised in a previous complaint. 3 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). 4 As the Supreme Court has pointed out, although OWBPA speaks in terms of "waivers," its provisions apply equally to "releases." See Oubre, 522 U.S. at 426-27 ("An employee 'may not waive' an ADEA claim unless the waiver or release satisfies the OWBPA's requirements."). 5 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). 6 Provision 6 states that Complainant was aware of the right to representation by an attorney and was encouraged to have an attorney review the Last Chance Agreement prior to signing. 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). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 10 0520170236 2 0520170236