01980455
11-25-1998
Josephine A. Mauro, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Josephine A. Mauro v. Department of the Air Force
01980455
November 25, 1998
Josephine A. Mauro, )
Appellant, )
)
v. ) Appeal No. 01980455
) Agency Nos. WEOF93334, WE1M94022,
F. Whitten Peters, ) WE1M94219
Acting Secretary, ) Hearing Nos. 220-97-5114X,
Department of the Air Force, ) 220-97-5115X,
Agency. ) 220-97-5116X
______________________________)
DECISION
On October 16, 1997, Josephine A. Mauro (appellant) timely appealed
the final decision of the Department of the Air Force (agency), dated
September 19, 1997, concluding she had not been discriminated against
in violation of the Age Discrimination in Employment Act (ADEA) of 1967,
as amended, 29 U.S.C. �621 et seq., and Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. This appeal is accepted
in accordance with the provisions of EEOC Order No. 960.001.
At the time this matter arose, appellant was employed by the agency as a
Secretary, GS-318-05, at the Aeronautical Systems Center, Wright-Patterson
Air Force Base, Ohio. On November 16, 1993, appellant filed a formal
EEO complaint (Agency Case No. WEOF93334) with the agency alleging she
had been discriminated against on the basis of her age (58) when, on July
13, 1993, she received a performance rating of "Fully Successful," with
numerical factors below what she believed her performance warranted.
On December 1, 1993, appellant filed a second EEO complaint (Agency
Case No. WE1M94022), alleging discrimination on the basis of age, and
reprisal for participating in EEO counseling with regard to Agency Case
No. WEOF93334, when she was not released to accept a detail at the GS-7
grade level in October 1993. The agency accepted the complaints and
conducted an investigation. At the conclusion of the investigation,
appellant requested an administrative hearing before an Equal Employment
Opportunity Commission (EEOC) administrative judge (AJ).
On August 24, 1994, the day the hearing (EEOC Hearing No. 220-94-5196X)
was scheduled to begin, appellant and the agency entered into a settlement
agreement, in which appellant agreed to withdraw her complaints in
exchange for certain actions on the part of the agency. The next day,
appellant notified the agency and the AJ that she wished to rescind her
signature on the settlement agreement and reschedule the hearing as she
believed she had been coerced into settling the case. When the agency
refused to void the settlement agreement, appellant appealed to this
Commission. The Commission ordered the complaints reinstated at the
hearing stage. See Mauro v. Department of the Air Force, EEOC Appeal
No. 01952349 (July 8, 1996).
In the meantime, on August 8, 1994, appellant filed a third EEO complaint
(Agency Case No. WE1M94219) in which she alleged she was retaliated
against for her two prior complaints when management refused to sign an
SF-172--Amendment to Application for Federal Employment, acknowledging
that she had performed higher level work from September 1992 to
February 1994. The agency accepted and investigated this complaint.
By letter dated December 2, 1996, appellant requested that this case
be consolidated with her two other complaints which were still pending
a hearing. The agency and AJ apparently agreed and, on May 1, 1997,
a hearing, at which seven witnesses testified, was held on all three
complaints.
On July 17, 1997, the AJ issued two separate recommended decisions in
which he found insufficient evidence to support appellant's allegations of
discrimination and/or reprisal in each of the three complaints. The AJ
found that management provided legitimate, nondiscriminatory reasons
for its actions, which appellant failed to prove, by a preponderance
of the evidence, were unbelievable or were more likely motivated by
discriminatory or retaliatory animus. With regard to the performance
appraisal issue, the AJ found that the rating supervisors provided
detailed and legitimate reasons for the ratings given, including
several security breaches which could have justified an even lower
rating than the one given. With regard to the detail, management
explained that at the time appellant's request was received, there was
a shortage of secretaries in the organization and there would have been
no one to assign to appellant's duties while she was on the detail.
Her immediate supervisor also stated that he was facing a deadline on a
very important and visible project, which needed secretarial assistance.
Appellant was eventually approved for a GS-7 detail in March 1994.
Finally, with regard to the SF-172, the AJ found credible the managers'
representations that they were willing to sign the form if appellant
would make certain corrections and additions, which she refused to do.
On September 19, 1997, the agency issued its final decision, adopting
the findings and conclusions of the AJ. It is from this decision that
appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns no
basis to disturb the AJ's finding of no discrimination or retaliation.
Nothing proffered by appellant on appeal differs significantly from
the arguments raised before, and given full consideration by, the AJ.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision which adopted the AJ's
finding of no discrimination or retaliation in Agency Case Nos. WEOF93334,
WE1M94022 and WE1M94219.
However, the record also establishes that at the hearing, appellant
attempted to introduce evidence concerning a fourth EEO complaint (Agency
Case No. WE1M94049) in which she raised another allegation of reprisal
when, in November 1993, management upgraded her position to the GS-06
level based exclusively on work performed by appellant and then awarded
the position to another employee. On May 24, 1994, shortly before the
first scheduled hearing, appellant, apparently as the behest of the agency
investigator assigned to her complaint, executed the following statement:
I, Josephine Mauro, hereby agree to withdraw my discrimination
complaint under OCI Docket # DAY94AF443E, Base Docket # WE1M940049 with
the understanding that the issue involving the classification of her
position from Secretary GS-318-5 to the GS-318-6 grade level will be
argued (supporting argument) in the EEOC hearing as it affectives [sic]
her complaint on her appraisal rating for the appraisal period 1 July
1992 - 30 June 1993. The EEO case number under which this argument will
be presented is EEO case number 220-94-5196X.<1>
Although appellant attempted to introduce this document as an exhibit,
the AJ refused to admit any evidence concerning the upgrade issue at the
hearing on appellant's performance appraisal on the basis that it was
"irrelevant" to the issues scheduled to be heard. On appeal, appellant
argues the AJ erred in this ruling and caused a "breach" of a settlement
agreement with the agency. Appellant asserts that the evidence on this
issue was relevant as all four complaints arise from the same set of
facts and, taken together, reveal a concerted plan on the part of her
management to force her to retire and punish her for protesting their
actions in the EEO complaint process.
The Commission finds that appellant has mischaracterized this statement
as a "settlement" agreement as the only signatures which appear on the
document are those of appellant and her lay representative. Therefore,
no breach of a settlement agreement is possible. However, the record
establishes that the agency's EEO investigator induced appellant to
withdraw her complaint in Agency Case No. WE1M940049 with the promise
that she would be able to raise this issue during her hearing on her
other three complaints. In doing so, the investigator exceeded his
authority as he was not the agency's representative and had no power to
bind the AJ. Therefore, in the interests of justice, the Commission holds
that appellant's agreement to withdraw her complaint is voidable at her
option, and if she chooses to do so, the agency is obligated to resume
processing Agency Case No. WE1M940049 at the point where it ceased.
Cf. Nichols v. Department of State, EEOC Appeal No. 01972930 (May 15,
1998); Jacobsohn v. Department of Health and Human Services, EEOC
Request No. 05930689 (June 2, 1994).
Accordingly, for the reasons stated above, Agency Case No. WE1M940049
is REMANDED, pursuant to the following Order, for further processing.
ORDER
The agency is ORDERED to process the remanded complaint, at appellant's
option, in accordance with 29 C.F.R. �1614.108 et seq. Within thirty
(30) calendar days of the date this decision becomes final, the agency
shall secure appellant's decision on her desire to void her withdrawal of
Agency Case No. WE1M940049 (concerning the upgrading of her position and
award of it to another) and continue its processing from the point where
processing ceased. The agency shall make every effort to expedite the
case. Appellant shall be provided the opportunity to request a hearing
on this complaint before an EEOC AJ pursuant to 29 C.F.R. �1614.109.
A copy of the agency's letter to appellant seeking a decision on the
continued processing of her complaint, as well as appellant's response,
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 (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Nov 25, 1998
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 This statement was only signed by appellant and her lay representative.