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EEOC DOC 0120121983 (E.E.O.C.), 2016 WL 6662838

U.S. Equal Employment Opportunity Commission (E.E.O.C.)

* * * HESTER S., COMPLAINANT,

v.
JENNY R. YANG, CHAIR, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 2 AGENCY.

Appeal No. 0120121983

Agency No. 2011-33808
October 24, 2016

DECISION

*1 On March 9, 2012, Complainant filed an appeal from the Agency's February 2, 2012, final decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. 2000e et seq., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. 1614.405(a).
For the following reasons, the Commission REVERSES in part and AFFIRMS in part the Agency's final decision.

ISSUES PRESENTED

The issues presented are: 1) whether a settlement agreement executed in a non-EEO process on issues raised later in a
formal EEO complaint constitutes a waiver of those issues in a subsequent EEO complaint; and 2) whether Complainant
validly waived her age claims under the Older Workers Benefit Protection Act (OWBPA).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Operations Analyst, GS-12,
at the Agency's Dallas, Texas District Office. Beginning in February 2010, Complainant requested several reasonable
accommodations for her disabilities, which she maintains had not been granted by 2011.

In a meeting with management on April 19, 2011, the Agency's District Director offered Complainant the following three
options: 1) placement on a performance improvement plan (PIP); 2) reassignment to an Investigator position; or 3) her
agreement to retire effective June 3, 2012. After the meeting, Complainant contacted the union local president and union
steward. On April 21, 2011, the District Director sent Complainant an email that contained a proposed agreement and
resignation letter for her to consider. On April 25, 2011, Complainant initiated contact with an EEO Counselor. At that
time, Complainant alleged that she had been discriminated against on the basis of disability and in reprisal for protected
EEO activity when she was issued a Performance Improvement Plan (PIP) and denied a reasonable accommodation. On
May 19, 2011, Complainant agreed to extend counseling to pursue Alternative Dispute Resolution (ADR) within the
EEO process. On June 10, 2011, during a follow up interview with an EEO Counselor, Complainant expanded her bases
to include race (Caucasian), national origin (Hispanic American of Mexican origin), sex (female), and age (54 years old).

*2 On May 10, 2011, Complainant's attorney notified the District Director of her representation of Complainant. Also,
on May 10, 2011, Complainant and her attorney met with union officials. During the meeting, Complainant and her
attorney presented a counterproposal to the Agency's draft settlement agreement. After the meeting, Complainant's

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attorney informed the Agency that its proposed agreement was unacceptable and would be rejected unless certain deal
breaker language was removed.

The Settlement Agreement

On May 11, 2011, the union president presented Complainant with a settlement agreement, which Complainant signed.
The settlement agreement provided, in pertinent part: 3
(1) In exchange for not placing the Employee on a Performance Improvement Plan (PIP), the Agency will do the
following:
a. Effective June 15, 2011, the Employee will be detailed to perform unclassified duties for three consecutive
details of not more than 120 days each.
b. The duties encompassed by this agreement include but are not limited to: the daily processing of all incoming
and outgoing Dallas District Office mail and related correspondence attendant to all aspects of the mailroom
operation; performance of reception duties as needed; general support assistance to the Administrative Unit and
Office of the District Director; and other support activity duties as assigned by the District Director and/or Deputy
District Director.
c. The Employee's work station shall be determined by the District Director and may be subject to change to meet
operational needs as determined by the District Director.
d. The Agency agrees that the Employee will be allowed to retire at [sic] a GS-12.
(2) In consideration of the above promises, the Employee agrees to retire from the Agency effective the end of the
first pay period on or after May 31, 2012, but no later than June 15, 2012. Contemporaneously with this agreement,
the Employee will execute and deliver to the Agency a retirement letter at the time of the signing of this Agreement.
The Employee agrees not to withdraw this letter and understands and agrees that the Agency has taken action in
reliance upon her letter of retirement. The Employee will submit a formal application of retirement no later than
April 3, 2012.
***
(5) The Employee hereby agrees to accept the Agency's actions detailed in paragraph 1 in full resolution of any
pending or anticipated claims or other rights of actions that occurred on or before the date of the signing of
this Agreement, and does release and forever discharge the Agency and Agency's past or present employees,
representatives, servants, agents, or any other persons standing in any representative capacity by virtue of law,
equity, statutory or administrative ruling or provision, and does specifically release all causes of action . . . relating
to her employment with the Agency from her date of hire to the date of the signing of this Agreement, whether
known or unknown, suspected, or unsuspected.
*3 * * *
(7) The Employee represents that at the time of the signing of this Agreement, the Employee has no pending claims
against the Agency, including but not limited to EEO complaints.
***

Formal EEO Complaint

On August 10, 2011, following an unsuccessful attempt at ADR, Complainant filed an EEO complaint in which she
alleged that the Agency harassed and discriminated against her on the bases of race (Caucasian), sex (female), national
origin (Hispanic), disability, age (54 years old), and in reprisal for prior protected EEO activity arising under the
Rehabilitation Act when the Agency failed to provide her with a reasonable accommodation for her disability.

Final Agency Decision

In a final decision dated February 2, 2012, the Agency dismissed Complainant's complaint on the basis that it was
moot or, alternatively, failed to state a claim because it was resolved by a settlement agreement. Specifically, the Agency

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found that Complainant knowingly and voluntarily entered into the settlement agreement with the Agency, although
she did not have a final consultation with her attorney. The Agency noted that Complainant could have opted not to
sign the agreement and to move forward with her EEO complaint, but she did not do so. The Agency further noted
that Complainant submitted her letter of resignation the day before she signed the agreement, although she had counsel
at that time.

CONTENTIONS ON APPEAL

Complainant's Brief on Appeal

On appeal, Complainant maintains that the Agency improperly dismissed her complaint. Complainant argues that
between April 19, 2011, and May 11, 2011, Agency management repeatedly threatened and pressured her to sign the
settlement agreement or be placed on a PIP. Complainant maintains that on May 10, 2011, she submitted her letter
of intent to submit a retirement application, but management was aware that she was represented by an attorney at
that time. Complainant further maintains that on May 11, 2011, union representatives and management denied her the
opportunity to consult with counsel after she was presented with a revised agreement. Complainant alleges that the
agreement was materially unchanged from a version of the agreement she had rejected the previous day. Complainant
maintains that without her attorney, she did not understand that the agreement waived/resolved all of her legal claims,
and that she was coerced to sign the agreement under the threat of loss of her job, early retirement, and unemployment.

Additionally, Complainant maintains that the Agency failed to comply with the Older Workers Benefit Protection
Act (OWBPA), which provides particular protections before a complainant can waive an age discrimination claim.
Complainant also requests that the Agency pay her attorney's fees associated with this appeal.

Agency's Response

The Agency acknowledges on appeal that on April 21, 2011, the District Director sent Complainant a proposed
settlement agreement that provided that Complainant would resign in exchange for the Agency not reassigning her or
placing her on a PIP. The Agency further acknowledges that on May 4, 2011, Complainant retained counsel, who notified
the union president and union steward of her representation.

*4 The Agency explains that Complainant's attorney provided the union with a counterproposal to its draft settlement
agreement and met with union officials on May 9, 2011, to discuss the proposed changes. The Agency maintains that
on May 10, 2011, Complainant's attorney provided written notice to the District Director that she was representing
Complainant. The Agency further explains that on May 11, 2011, Complainant met with the District Director and
union president to discuss the proposed settlement agreement without her attorney present, and that during the meeting,
Complainant signed the settlement agreement.

The Agency argues that it properly dismissed Complainant's complaint because she agreed to settle her claims, she
had ample opportunity to review the terms of the agreement with her attorney, and her attorney authorized the union
president to resolve the matter in lieu of her presence. The Agency notes that Complainant's attorney sent the following
letter to the District Director on May 10, 2011, stating in pertinent part:
[Complainant] desires that this controversy be resolved. At this stage . . . [the] local Union President, is engaged in
an attempt to resolve the controversy. [The Union President] has met with me to discuss the controversy and his
resolution hopes.
[Complainant] looks forward to a resolution of the employment controversy. If you are unable to resolve this matter
with [the Union President] and would like to discuss a resolution, please feel free to contact me.

Report of Investigation (ROI), Tab 13.

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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 May 11, 2011. As
such, the agreement predates Complainant's August 10, 2011, formal EEO complaint. Moreover, we note the agreement
does not reference an EEO case number. Indeed, provision 7 states that Complainant represented that she did not have
any pending EEO complaints. Additionally, the agreement does not contain the standard notice of the procedure set
forth in 29 C.F.R. 1614.504(a) for alleging breach of an EEO settlement agreement, which also reflects that it is a non-
EEO agreement. Consequently, we conclude that the agreement was reached outside the EEO process.

Nevertheless, we note that provision 5 broadly states that the agreement fully resolves any pending or anticipated
claims that occurred on or before the date of the signing of the agreement, whether known or unknown, suspected,
or unsuspected. While this is a broad waiver of claims, it clearly and specifically encompasses all claims and matters
that occurred before the execution of the agreement. The matters contained in Complainant's formal EEO complaint
occurred before the agreement was executed. Additionally, by signing the agreement, Complainant stated that she had no
EEO complaints against the Agency, which reflects the intention of the parties to extinguish any EEO claims regarding
matters that predate the settlement agreement. Consequently, we find that agreement constitutes a purported waiver or
release of Complainant's instant EEO claims.

Validity of Waiver of non-ADEA Claims

*5 Complainant contends that she was coerced into signing the agreement. A release that waives rights arising under
Title VII and the Rehabilitation Act is valid and enforceable if entered into knowingly and voluntarily. See Alexander
v. Gardner-Denver Co., 415 U.S. 36, 51 n. 15 (1974) (In determining the effectiveness of any [Title VII] waiver, a court
would have to determine at the outset that the employee's consent to the settlement was voluntary and knowing.).
However, if coercion occurs during the formation of the contract, assent to the agreement is impossible, and the
Commission will find the contract void. See Pridgen v. Nuclear Regulatory Commission, EEOC Appeal No. 0120130496
(May 9, 2013) (citing Shuman v. Dep't. of the Navy, EEOC Request No. 05900744 (July 20, 1990)). Nevertheless, because
the Commission favors the voluntary resolution of discrimination complaints, settlement agreements are not lightly set
aside. Betts v. Equal Employment Opp. Comm., EEOC Appeal No. 0120091969 (Oct. 14, 2009), req. for recon. den'd,
EEOC Request No. 0520100112 (Feb. 14, 2011). The 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 in fact was 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. A complainant's bare assertions will not
justify a finding of coercion. Lenihan v. Dep't. of the Navy, EEOC Request No. 05960605 (Dec. 5, 1995).

In this case, by signing the agreement, Complainant expressly affirmed that she had a reasonable time to consider its
terms and consult with counsel, and that she had voluntarily and knowingly entered into the agreement. Additionally,
Complainant's attorney informed the Agency that it could resolve the matter without her (the attorney's) presence.
Although Complainant may have felt that the Agency would not settle with her if she did not sign the agreement on
May 11, 2011, Complainant still had the option not to sign the agreement, and to attempt further negotiations. The mere
existence of a difficult choice does not constitute coercion. Venegas v. U.S. Postal Serv., EEOC Appeal No. 0120070952
(Mar. 2, 2007) (complainant may not have liked the choice she was given, but there is nothing to support her contention
that she was forced to sign the agreement); Swanson v. Dep't of the Navy, EEOC Appeal No. 0120101729 (Aug. 24,
2010) (no coercion where complainant alleged that management told him that it wanted him gone and would fire him
with or without a settlement agreement); Davis v. Dep't of the Army, EEOC Appeal No. 01A14297 (June 11, 2002)
(complainant may have felt conflicted as to what she should do, but she did not establish that her assent to the settlement

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agreement was induced by an improper threat). Under these circumstances, we do not find that Complainant was coerced
into signing the agreement.

*6 We further find that the waiver agreement settles Complainant's claim that she was subjected to discrimination on
the bases of race, national origin, sex, disability, and in reprisal for EEO activity. Therefore, we find that the Agency
properly dismissed Complainant's non-age claims because they were waived/released through the settlement agreement.
See Harris v. Dep't of Veterans Affairs, EEOC Appeal No. 0120092799 (Nov. 19, 2009) (EEO complaint settled by non-
EEO settlement agreement); Taylor v. U.S. Postal Serv., EEOC Appeal Nos. 01A61815, 01A62169 (June 7, 2006) (EEO
complaint dismissed where non-EEO settlement provided that this agreement resolves any and all appeals or complaints
filed in other forums should such complaints or appeals be based on the settled issues). We now address the purported
waiver of Complainant's age claim.

Validity of Waiver of Age Claims under the OWBPA

The Agency generally maintains that it properly dismissed Complainant's age claim because she agreed to waive her right
to file the claims raised in her complaint. The Agency notes that Complainant affirmed within the release agreement
that she entered into it voluntarily and knowingly. Upon review of this matter, we note that this is insufficient to waive
age claims. In so finding, 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). 4 The requirements for waiver/release 5 of ADEA claims are:
*7 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; 6 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.

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29 U.S.C. 626(f)(1)(A)-(G). 7

In this case, Complainant had not yet filed an age claim at the time she entered into the settlement agreement that
purported to waive her claims against the Agency. We note that we previously have held that the protections of the
OWBPA are only triggered when an employee raises an age discrimination claim before entering into a waiver/release
agreement. For example, in Parker v. Department of the Treasury, the Commission held that Complainant did not raise
age discrimination in the underlying complaint; therefore, the Agency's failure to comply with the OWBPA is irrelevant.
Parker, EEOC Request No. 05A30633 (May 2, 2003). Likewise, in Sheehy v. National Security Agency, the Commission
found that Complainant should have been given OWBPA protections specifically because she raised age as a basis for
her complaint before entering into a settlement agreement. Sheehy, EEOC Request No. 0520100403 (Feb. 27, 2012).
Further, we have held that when an underlying complaint does not raise any allegations of age discrimination, OWBPA
protections are not necessary when such a complaint is settled. Complainant v. Dep't of the Army, EEOC Appeal No.
0120140708 (Mar. 11, 2014); see also Lewis v. Dep't of Homeland Sec., EEOC Appeal No. 0120071468 (Aug. 8, 2008)
(settlement agreement does not violate the OWBPA because there is no evidence that Complainant made claims of age
discrimination before entering into settlement agreement).

*8 However, upon further review of this issue, we conclude that our previous cases interpreted the OWBPA too
narrowly. We now hold that the OWBPA applies to waivers of ADEA rights or claims regardless of whether the rights or
claims were raised before the execution of the waiver agreement. 8 This is consistent with the stated intention of Congress
to vigorously protect the rights and benefits of older workers through the OWBPA by imposing a strict, unqualified
statutory stricture on waivers of age claims. Oubre, 522 U.S. at 427.

Significantly, the Supreme Court has recognized the applicability of OWBPA waiver requirements to age claims that had
not yet been filed at the time a waiver/release was executed. For example, in Oubre, an employee/plaintiff signed a release
of all claims against her employer as part of a termination agreement. Oubre, 522 U.S. at at 424. The release at issue
did not comply with the requirements of the OWBPA. The employee/plaintiff did not file an ADEA claim against the
employer until after the execution of the release that purported to waive her ADEA claims. Nevertheless, the Supreme
Court in Oubre applied OWBPA waiver requirements and found that the release could not waive plaintiff's ADEA claim
because it did not comply with those requirements. Id. As such, the Court made it clear that age claims cannot be validly
waived unless the requirements of the OWBPA have been met, even if the age claim purportedly waived by a release was
not filed until after the execution of the waiver. Likewise, federal circuit courts have applied OWBPA requirements to
waivers that predated the filing of corresponding age claims. See Ruehl v. Viacom, 500 F.3d 375 (3d Cir. 2007) (waiver
did not comply with OWPBA where age claim filed after plaintiff signed release); Thomforde v. Int'l Business Machines
Corp., 406 F.3d 500 (8th Cir. 2005) (waiver did not comply with OWBPA where plaintiff signed release upon termination
months before filing age claim); Tune v. Texaco, Inc., 150 F.3d 206 (2d Cir. 1998) (release did not comply with OWBPA
where plaintiff filed age claim after signing release). 9 To the extent that the Commission has held differently in the past,
we no longer are following that precedent. Thus, we find that the release at issue here must comply with the requirements
of the OWBPA to validly waive Complainant's age claim.

Applying OWBPA's requirements to this waiver, we find that the waiver fails to meet the requirement of specifically
referring to rights or claims arising under the ADEA. Further, the waiver does not state that Complainant was advised in
writing to consult with an attorney prior to executing the agreement. 10 Additionally, contrary to OWBPA requirements,
Complainant was not given a period of at least 21 days within which to consider the agreement. Further, the waiver did
not give Complainant a seven-day period in which she could revoke the agreement after its execution. As such, we find
that the waiver does not constitute a valid waiver of Complainant's age discrimination claims; therefore, Complainant's
age claims must be reinstated by the Agency. 11 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

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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, EEOC Request No. 0520100403.

CONCLUSION

*9 In summary, we find that Complainant has not waived her age discrimination claims because the Agency did
not comply with the requirements of the OWBPA. Therefore, we REVERSE the Agency's dismissal with respect to
Complainant's age claim and REMAND this claim to the Agency for further processing. We AFFIRM the Agency's
dismissal of Complainant's claims of discrimination on the bases of race, national origin, sex, disability, and reprisal
because these matters have been resolved by a settlement agreement.

ORDER

The Agency is ordered to process the remanded age claim in accordance with 29 C.F.R. 1614.108. The Agency shall
acknowledge to the Complainant that it has received the remanded age claim within thirty (30) calendar days of the date
this decision becomes final. 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 becomes final,
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.

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)

*10 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.

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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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its
administrative processing of a portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time
as the Agency issues its final decision on your complaint. 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. If you file a request
to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

*11 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:

Bernandette B. Wilson
Acting Executive Officer
Executive Secretariat

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.

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Footnotes
2 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the
adjudicatory authority. The Commission's adjudicatory function is housed in an office that is separate and independent from
those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision,
the terra Commission or EEOC is used when referring to the adjudicatory authority and the term Agency is used
when referring to the respondent party to this action. The Chair has recused herself from participation in this decision.
3 We note at the outset that some of the terms and conditions in this agreement are not typically used by the Commission when
drafting settlement agreements.
4 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).
5 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.).
6 We note that when a purported waiver settles an ADEA charge filed with the Equal Employment Opportunity Commission,
or an action filed in court by the individual or the individual's representative, alleging age discrimination, it will not be
considered knowing and voluntary unless at a minimum it meets the requirements of subparagraphs 29 U.S.C. 626(f)(1)
(A)-(E). and the individual is given a reasonable period of time within which to consider the agreement. 29 U.S.C. 626(f)
(2). In this case, an age claim had not been filed within the EEO process; therefore, Complainant was entitled to have at least
21 days within which to consider the agreement in accordance with 29 U.S.C. 626(f)(1)(F)(i).
7 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)
8 Consequently, as a practical matter, all releases involving claimants 40 years old or over should comply with OWBPA.
9 Of course, a waiver may not be considered knowing and voluntary unless the employee does not waive rights or claims that
may arise after the date the waiver is executed. 29 U.S.C. 626(f)(1)(C); 29 C.F.R. 1625.22(c). In this case, the claims that were
purportedly released concern matters that predate the execution of the waiver and therefore do not violate the prohibition on
waiving claims that arise after the date of the release.
10 Provision 12 states that Complainant had a reasonable amount of time to exercise the right to consult private counsel.
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 Amava-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).
11 To the extent Complainant requests attorney's fees related to our reinstatement of her age claim, we note that attorney's fees
are not available under the ADEA. See Tellez v. Dep't of the Army, EEOC Request No. 05A41133 (Mar. 18, 2005).
EEOC DOC 0120121983 (E.E.O.C.), 2016 WL 6662838

End of Document 2017 Thomson Reuters. No claim to original U.S. Government Works.

2017 Thomson Reuters. No claim to original U.S. Government Works. 9