0120112876
10-05-2011
Cynthia C. Smith, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cynthia C. Smith,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112876
Agency No. 200P06492011101769
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 31, 2011, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Housekeeper Aide at the Agency’s Northern Arizona Veterans Affairs
Health Care System facility in Prescott, Arizona.
On March 20, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American) and reprisal for prior protected EEO activity when
she was terminated during her probationary period on July 24, 2009,
and as a result of a settlement agreement she was demoted.
The record indicates that Complainant filed an earlier EEO complaint
concerning her termination (Agency No. 200P-0649-2009104142).
The parties entered into a settlement agreement on September 2, 2009,
which specifically stated that Complainant would be returned to work
effective September 4, 2009, and “will be assigned to the Housekeeping
Department on the second shift with a pay grade of WG-2, Step 5.
Prior to her termination, Complainant was in a higher graded position.
Complainant appealed her demotion with the Merit Systems Protection Board
(MSPB), which dismissed the matter for lack of jurisdiction because
the demotion was the result of the settlement agreement. Complainant
then filed the instant complaint. The Agency dismissed the complaint
for being identical to the earlier complaint and for failure to state
a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
To the extent that Complainant is challenging her termination; the
Commission finds that Complainant previously raised that issue in her
first EEO complaint (Agency No. 200P-0649-2009104142). The matter was
resolved when the parties entered into a settlement agreement. While
Complainant asserts now that she signed the agreement under duress,
she has not provided any proof of this. Rather, it appears that she is
now unhappy with its terms and she feels she was wrongly terminated.
Complainant is not alleging a breach of the settlement agreement.
As such, because the Commission finds that Complainant has not proven
duress and because the Agency cancelled the termination and rehired
her at the pay rate specified in the agreement, the Commission finds
that the instant complaint fails to state a claim and states the same
claim as that settled by Complainant’s earlier complaint. See Diaz
v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
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
October 5, 2011
__________________
Date
2
0120112876
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112876