Las Vegas POA

Last Chance Agreement Can Waive Title VII Discrimination Claims

Written on 03/03/2021
Will Aitchison

Michael Snowden is an African American male who formerly worked as a sergeant for the United States Park Police (USPP) supervising other law enforcement officers in the Communications Section. While working a shift in August 2004, Snowden received a call from his relative, Brian Lamont. On the call, Lamont asked Snowden for the registration information associated with a specific license plate – information that Snowden had the ability to obtain through law enforcement databases. A USPP General Order prohibited employees from “releasing law enforcement information from a computerized network to anyone other than a Force officer or an individual designated by the Commander.”

Notwithstanding the General Order, Snowden procured the requested data and gave it to Lamont, even after acknowledging that he could lose his job for doing so. Unbeknownst to Snowden, Lamont was not the only person on the phone; the DEA had intercepted the phone call, as Lamont was a known felon under DEA investigation. As an alternative to termination, Snowden signed a last chance agreement resulting in his demotion. If Snowden violated the agreement, the USPP retained the right to immediately terminate him without any appeal.

Snowden then proceeded to work at USPP without incident for almost two years. However, during that time, he was not actually demoted in terms of his salary; he continued to be paid at the Sergeant level. When USPP realized its mistake in this regard in June of 2010, after discovering that a clerical error had prevented Snowden’s demotion from being reflected in its payment system, it notified Snowden that his demotion would occur on July 18, 2010.

On July 4, 2010 – after Snowden received notice of his upcoming demotion, but before the demotion took place – USPP assigned Snowden to monitor suspicious activity on the National Mall from the vantage point of a nearby sky tower. An FBI agent in a mobile command bus noticed that the CCTV camera to which Snowden had been assigned was transmitting close-up footage of various women’s chests and buttocks. The FBI agent informed USPP that “the FBI was viewing these images, that the camera was not being used appropriately, and that the operator of the camera needed to be made aware that others were seeing these images.” A USPP employee, Sergeant Fred Grefe, subsequently relayed this message to Snowden, who replied with “words to the effect of ‘oh man, busted.’”

USPP terminated Snowden, citing the last chance agreement. Snowden sued, asserting claims under Title VII for race and color discrimination and unlawful retaliation. The USPP rejoined that Snowden waived his rights to challenge his termination by entering into the last chance agreement.

A federal court upheld Snowden’s termination. The Court found that “Snowden entered into the agreement knowingly and voluntarily. Snowden took more than 60 days to decide whether or not to sign the agreement, and he was represented by a lawyer at the time he executed the contract. What is more, he attempted to negotiate various terms of the contract with the Acting Assistant Chief of Police.

“A contract’s waiver of a party’s appeal rights is enforceable if the waiver’s terms are unambiguous and if the party that relinquished its appeal rights did so knowingly and voluntarily. The agreement’s waiver provision is as unambiguous as it gets. Under paragraph 15 of the agreement, Snowden agreed that if he ‘breached the Agreement and the removal action was effected, he waived any and all rights to challenge, grieve, litigate, complain or appeal any disciplinary action.’ The provision’s plain text unequivocally covers Snowden’s instant claims regarding his demotion and termination, which, by their nature, are challenges to subsequent disciplinary actions.

“Snowden’s struggle to sidestep the conclusion that the agreement’s clear waiver provision must be enforced includes the argument that the agreement did not explicitly waive his right to bring claims under Title VII. However, the plain text of the agreement is unambiguous: in the event of any sustained misconduct during the effective period of the agreement, Snowden plainly waived ‘any and all rights to challenge, grieve, litigate, complain or appeal any disciplinary action.’ Given the breadth of this waiver, the fact that the agreement does not reference Title VII claims in particular is of no moment.”

Snowden v. Zinke, 2020 WL 7248349 (D.D.C. 2020).

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