0120063936
12-05-2007
Christina D. Whitmire, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Christina D. Whitmire,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120063936
Agency No. AREUHEID05DEC12340
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 6, 2006, dismissing her complaint of unlawful
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., the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In a January 22, 2006 complaint, complainant alleged that she was
subjected to discrimination on the bases of age (born May 4, 1954), sex
(female), disability, and in reprisal for prior protected EEO activity
when:
1. On or about December 10, 2005, complainant learned that an agency
official shared complainant's medical history with other employees;
2. On or about December 4, 2005, complainant learned that the agency
official usurped complainant's authority by telling employees that they
do not need to be independently licensed social workers;
3. On or about November 22, 2005, complainant became aware that the
agency official received personal emails from complainant's government
computer and passed the information to colleagues;
4. On or about September 19, 2005, the agency official canceled
complainant's TDY (temporary duty) trip to a Clinical Directors Conference
in Wiesbaden, Germany;
5. The agency official addressed complainant as "Christina" or
"Ms. Whitmire" instead of complainant's appropriate title, which is
"Dr. Whitmire;" and
6. The agency's legal representative provided false information about
Household Goods shipment and Leave without Pay during negotiations for
a settlement agreement which was signed on November 9, 2005.
In a final decision dated February 6, 2006, the agency dismissed
complainant's complaint. Specifically, the agency determined that
complainant waived her right to pursue claims 1 - 5 because these matters
actually occurred before the execution of the November 9, 2005 settlement
agreement. The agency dismissed claim 6 on the basis that this matter
states the same claim raised in a previous decision, and alternatively,
on the basis that it concerns confidential and privileged settlement
negotiations.
On appeal, complainant contends that the agency improperly dismissed
her complaint, and reasserts her claim that the agency breached the
settlement agreement, which was the subject of her previous appeal,
Christina D. Whitman v. Department of the Army, Appeal No. 0120062892
(August 31, 2006). Complainant argues that since the agency breached the
agreement by failing to credit her with the promised amount of leave,1 she
is no longer bound by the waiver provision of the agreement. Complainant
further argues that the dismissal of claim 6 was improper because the
agency fraudulently induced complainant to enter the settlement agreement
and then failed to reinstate her leave as promised.
The record reveals that in provision 4b of the November 9, 2005
settlement, complainant expressly "waive[d] her right to administrative
or judicial action, in any form or forum, against the Agency, its
agents or employees, with respect to matters that arose prior to
the date of this NSA [negotiated settlement agreement]." Further,
in provision 6, complainant affirmed that she had read the agreement,
carefully reviewed and understood its provisions, entered the agreement
freely and voluntarily, and fully accepted its terms. Moreover, although
complainant contended in her complaint that she learned of the matters
contained in claims 1 - 3 after the execution of the settlement agreement,
record evidence indicates that complainant learned of claims 1 - 5 prior
to the execution of the agreement. For instance, the record contains an
affidavit from complainant's co-worker wherein the co-worker states that
complainant learned of the sharing of her medical history by November 3,
2005; a November 3, 2005 email from complainant to the agency official
wherein complainant claimed that the official usurped her authority;
an October 21, 2005 email wherein complainant alleged that the agency
official procured personal emails from complainant's computer and
disseminated them to colleagues and canceled her trip to Wiesbaden,
Germany; and an affidavit from the agency official in which he stated that
he had discussed complainant's desire to be addressed as "Dr. Whitmire"
with complainant prior to November 9, 2005. On appeal, complainant does
not dispute that she learned of these matters prior to the execution of
the agreement. Thus, we find that the agency properly dismissed claims
1 -5 because complainant waived her right to pursue these matters when
she entered into the November 9, 2005 settlement agreement.
Regarding claim 6, we note that complainant previously raised this
matter to the agency in a letter dated November 16, 2005, and the
agency responded in a decision dated February 9, 2006. In a decision
dated August 31, 2006, the Commission determined that the agency had
complied with the terms of the agreement and that complainant failed to
provide evidence that supported her claim that the agency induced her to
sign the settlement agreement with false information. See EEOC Appeal
No. 0120062892. Thus, we find that the agency properly dismissed claim 6
because it concerns the same matter previously decided by the Commission.
29 C.F.R. � 1614.107(a)(1).
Accordingly, the Commission AFFIRMS the final agency decision for the
reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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. 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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
_December 5, 2007_
Carlton M. Hadden, Director
Date
Office of Federal Operations
1 The settlement agreement provides, in pertinent part:
The [agency] agrees to. . . grant the complainant leave without pay from
19 December 2005, until 20 January 2006.
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0120063936
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063936