Timika O.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 6, 20180120171915 (E.E.O.C. Nov. 6, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Timika O.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171915 Hearing No. 551-2013-0019X Agency No. 200P-0346-2011103640 DISMISSAL Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) regarding 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., 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. During the relevant time, Complainant worked as a Veterans Service Representative (Rating) at the Agency’s Regional Office in Seattle, Washington. Believing that she was subjected to discrimination based on her race (African-American), disability, and age, Complainant contacted an EEO Counselor. During the informal process, Complainant and the Agency were able to resolve her concerns with a settlement agreement. The parties executed the agreement on August 4, 2011. Thereafter, on March 12, 2012, Complainant alleged that the Agency breached the agreement. On June 19, 2012, the Agency issued a decision finding no breach. However, the Agency also determined that the agreement did not comply with the Older Workers’ Benefits Protection Act. 1 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. 0120171915 2 Consequently, it voided the entire agreement and reinstated Complainant’s complaint.2 On August 21, 2012 Complainant filed a complaint alleging a hostile work environment, comprised of sixteen events. The Agency accepted the harassment claim (made up of all sixteen events), but declined to consider many of the events as independent, actionable claims on the grounds of untimeliness. Three claims were accepted as discrete acts. An investigation was conducted and a report of investigation (ROI) issued on February 28, 2013. The instant record does not contain any further documents regarding the processing of the complaint. Nonetheless, on May 2, 2017, Complainant filed the instant appeal. She did not submit a brief or statement, but simply included a copy of an EEOC Administrative Judge’s (AJ) “Order Granting Agency’s Motion for an Order Allowing Complainant to Proceed only with Age-based claims.” The April 26, 2017 Order explains that Complainant was provided the choice of: (1) appealing the Agency’s determination of no breach; or, (2) voiding the settlement and proceeding with her complaint. Referencing correspondence dated April 14, 20173, the AJ noted that Complainant chose the latter. The AJ reasoned that, due to the failure of the agreement to comply with OWBPA requirements, the settlement was void with respect to Complainant’s age-based claims. Lastly, the AJ noted that Complainant may appeal the Agency’s determined of no breach with respect to the none-age based claims. In response, the Agency notes “[a]s an initial matter, it is not clear what Complainant is appealing.” We agree. As stated by the Agency, if she is appealing the AJ’s order, which she attached to her appeal form, then her appeal is premature. Alternatively, if she is appealing the Agency’s breach determination, referenced in the AJ’s order, she is years beyond the time limit for doing so. As noted above, the Agency’s decision was issued in June 2012, more than six years ago. Consequently, Complainant’s appeal is hereby DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 2 Since the agreement was created prior to the filing of a formal complaint, on August 7, 2012, Complainant was issued a Notice of Right to File Individual Complaint. 3 The AJ’s April 6, 2017 “Notice of Intent to Dismiss” and Complainant’s April 14, 2017 response are not included in the instant record. 0120171915 3 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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 (Z0815) 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. 0120171915 4 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: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 6, 2018 Date Copy with citationCopy as parenthetical citation