The EEOC has overruled the MSPB on the impact of a settlement in a “mixed case” which did not comply with the Older Workers’ Benefit Protection Act (OWBPA). In this mixed case, Campo v. Potter, EEOC No. 03A20012 (2002), the employee challenged his removal, and also alleged claims of Title VII discrimination, age discrimination, and reprisal for filing an age claim. This case was ultimately settled and the settlement was approved by the MSPB. Subsequently, the employee filed a petition for review with the Board, to set aside the agreement as contrary to the OWBPA. The OWBPA specifically requires that a settlement, to be a voluntary waiver of claims, must specifically advise the employee to consult with an attorney and must give the employee a “reasonable” time to consider the agreement. In this case, the settlement did not provide this notice.
The Board affirmed the validity of the settlement agreement; the EEOC reversed. The EEOC held that while the settlement agreement was valid as to the Title VII claims, it was not valid as to the age claim or the “retaliation for filing and age” claim because it did not meet the requirements of the OWBPA. Even though the employee was represented by an attorney at the time, the EEOC concluded that this agreement, which contained a purported waiver of the employee’s age claims, could not be enforced.
The effect of this decision, and the employing-agency’s failure to comply with the OWBPA, is that this employee may now have the opportunity to litigate his age claims even though he has received the benefits of a settlement of his other claims–i.e., two bites at his claims. The EEOC specifically held that the employee is not now required to give back any of the consideration he received as an incentive to settle his age-based claim, and that the agency cannot fail to comply with a settlement agreement by requiring the employee pay back any of the consideration. If, however, the employee ultimately prevails on his age claim and is awarded any relief, the agency may have a claim for a reduction of the award.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **