0120083672
02-03-2011
Amy M. Blackburn, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Amy M. Blackburn,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120083672
Agency No. DFAS-00083-2008
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 23, 2008, 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.
BACKGROUND
Complainant was hired as a Human Resources Specialist at the Agency's
Directorate of Human Resources, DFAS-IN in Indianapolis, Indiana,
subject to a two-year appointment, ending on April 30, 2008.
The Commission first addresses the following events that preceded the
filing of the instant formal complaint. On December 20, 2007, Complainant
filed a formal complaint (identified as Agency No. DFAS-00021-2008).
Therein, Complainant claimed that she was the victim of unlawful
employment discrimination on the basis of sex when: (1) from May 2007
to October 2007, she was subjected to sexual harassment (touching,
comments, unwelcome advances) by her DFAS-supervisor; and (2) she was
subjected to harassment and a hostile work environment when (a) from
June 2007 to August 2007, she was denied reassignment; (b) on October 9,
2007, she was given a No-Contact Order; and (c) on December 16, 2007,
she was given a Notice of Proposed Suspension.
The record further reflects that the December 2007 notice of proposed
suspension was issued on the charges that an internal investigation
revealed that Complainant engaged in ongoing anonymous harassing of her
supervisor and his family after he ended a consensual sexual relationship
with her. On January 28, 2008, Complainant entered into an abeyance
agreement with the Agency. In the agreement, the Agency agreed to hold
in abeyance for a period of eighteen months the determination to suspend
Complainant from duty for thirty days without pay. However, among its
other provisions, the abeyance agreement provided that Complainant
agreed, among other things, to "withdraw her formal EEO complaint,
DFAS-00021-2008, that she had pending with the Agency's EEO Office."
Complainant further agreed to continue receiving mental health treatment
and counseling and to avoid contact with the involved supervisor. The
record reflects that Complainant was not represented when she entered
into the January 28, 2008 abeyance agreement.
On January 29, 2008, the EEO Office notified its contracted investigative
source and the Investigations and Resolution Division that Complainant had
withdrawn the formal complaint identified as Agency No. DFAS-0021-2008.
On April 7, 2008, Complainant was notified that she had violated the
January 28, 2008 Abeyance Agreement. The Agency gave Complainant seven
calendar days to respond before issuance of a final determination.
On May 5, 2008, Complainant entered into a Memorandum of Agreement (MOA)
with the Agency. Therein, Complainant acknowledged that she violated
the terms of the Abeyance Agreement, agreed to resign her employment
with the Agency, and to "waive any and all appeals and grievance rights
on issues which had been raised or could have been raised" in connection
with these circumstances. Complainant was represented by an attorney when
she entered into the May 5, 2008 MOA. On April 18, 2008, pursuant to the
terms of the agreement, Complainant resigned from her position with DFAS.
On July 9, 2008, Complainant filed the instant formal complaint.
Therein, Complainant alleged that she was subjected to discrimination
on the bases of sex and in reprisal for prior EEO activity when:
(1) from June 2006 to October 2007, she was subjected to sexual harassment
and a hostile work environment by her DFAS-Indianapolis supervisor;
(2) from January 24, 2008 to June 10, 2008, she was subjected to a
hostile work environment by DFAS-Indianapolis officials; and
(3) on April 24, 2008, she was forced to resign (constructively
discharged) from her employment with DFAS-Indianapolis.
Further, Complainant indicated that she was under duress and not
mentally competent when she signed the January 28, 2008 Abeyance
Agreement and the May 5, 2008 MOA. Complainant submitted evidence that
she was seeing a counselor and had two visits with a psychiatrist.
Complainant also submitted evidence showing that on April 10, 2008,
her psychiatrist diagnosed her with Post Traumatic Stress Disorder
(PTSD), and severe major depression. Complainant also stated that
she was told by Agency management that if she did not sign the MOA, she
would have been suspended or terminated. Complainant argues, therefore,
that the Abeyance Agreement and MOA should be voided.
In its July 23, 2008 final decision, the Agency dismissed the instant
formal complaint for raising the same claim as a prior case, pursuant
to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency stated that the
disposition of all of Complainant's claims in Agency No. DFAS-0021-2008
were effected when she entered into the May 5, 2008 MOA in which she
agreed to waive any and all appeal and grievance rights or issues
which had been raised or could have been raised in connection with the
circumstances that led to management's decision to find her in violation
of the Abeyance Agreement that she entered into with management on
January 28, 2008.
Regarding the assertion that she was not mentally competent to enter
into an agreement, the Agency noted that according to her psychiatrist,
Complainant's thinking and judgment had been impaired for at least six
months and that she made impulsive decisions. The Agency, however,
stated that Complainant's conduct during the negotiations did not
indicate impairment. Specifically, the Agency stated that Complainant
was represented by an attorney; her attorney was aware of Complainant's
condition; Complainant had a clear grasp of the facts; Complainant
assisted her attorney in the matter; and the attorney found Complainant
competent to sign the MOA; and Complainant followed the advice of her
attorney by signing the MOA.
As to Complainant's claim of coercion, the Agency stated that during the
relevant period, Complainant was on a two-year appointment ending April
30, 2008. The Agency determined that Complainant was not entitled to be
converted to a permanent position, but could have been upon satisfactory
completion of her internship. The Agency stated that when Complainant
violated the Abeyance Agreement, she would have been suspended from
duty for thirty days by the terms of the agreement that was held in
abeyance. The Agency indicated that Complainant signed the MOA freely.
On appeal, Complainant argues that the Agency erred in dismissing the
instant formal complaint for stating the same claim as was raised in
a prior complaint. Complainant further argues that the Agency did not
address her harassment claim and that the MOA should be set aside because
she was coerced into signing it.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the Agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the Agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890
(April 5, 1996) rev'd on other grounds, EEOC Request No. 05960524 (April
24, 1997).
Upon review of the record, the Commission finds that the claims in the
instant formal complaint are not identical to the previous complaint.
While both complaints contain the same sexual harassment claim, the
instant formal complaint alleges a hostile work environment by Agency
officials from January 2008 - June 2008, as well as a forced resignation
in April 2008, which were not alleged in the earlier complaint.
Therefore, we cannot affirm a dismissal of the instant complaint on
grounds that it states the same claim as Complainant's earlier complaint,
with the exception of the sexual harassment claim.
However, the claims raised in the instant complaint have already been
disposed of in the May 5, 2008 MOA between Complainant and the Agency.
In that settlement agreement, Complainant conceded that she had violated
the terms of the suspension Abeyance Agreement, that she would voluntarily
resign her employment with the Agency, and that she would "waive any and
all appeals and grievance rights on issues which had been raised or could
have been raised" in connection with these circumstances. Therefore,
we find that the instant complaint should be dismissed because the
parties agreed, by the terms of the MOA, that Complainant would not file
a complaint on these matters. While Complainant asserts she was coerced
into signing the MOA and was not mentally competent to do so, we find
that the record supports the Agency's assertion that Complainant was
represented by an attorney when she entered into the May 5, 2008 MOA.
Complainant participated with her attorney in the negotiations of the
MOA and this attorney was aware of Complainant's mental health issues at
the time. There is no evidence to support a finding that Complainant's
attorney was not protecting her interests at the time, and by allowing her
to sign the agreement indicated that she was mentally competent to do so.
Accordingly, we AFFIRM the Agency's dismissal of the complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 3, 2011
__________________
Date
2
0120083672
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083672