0120101905
08-19-2010
Gina F. Myers, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Gina F. Myers,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101905
Agency No. 200L06232009100274
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the March 10, 2010 final Agency decision addressing the merits of 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In her EEO complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of race (Caucasian), disability, and reprisal for prior protected EEO activity involving being charged leave for a late arrival on September 10, 2008, being issued written counseling on November 20, 2008, numerous acts of ongoing harassment starting in December 2007, and the eventual decision to remove her from her position effective May 1, 2009. Following the investigation into the complaint, the Agency issued its March 10, 2010 decision finding no discrimination had occurred in all but one claim. In that claim, the Agency made a per se finding of reprisal when Complainant's supervisor shared her EEO complaint with others. The Agency ordered the responsible supervisor to attend EEO training and directed management to consider disciplinary action against him. A notice of the finding was also ordered to be posted in the relevant workplace. As the complaint involved both "mixed" (pursuant to 29 C.F.R. �1614.302) and unmixed issues, Complainant was provided with appeal rights to the Merit System Protection Board (MSPB) on the removal action, as well as appeal rights to this Commission on other claims. Complainant filed the instant appeal on March 31, 2010.
The record indicates that Complainant also filed a timely appeal with the MSPB. In a decision dated June 14, 2010 (MSPB Appeal No. DA-0752-10-340-I-1), the MSPB Administrative Judge approved the resolution of Complainant's appeal before that body as a result of a written settlement agreement reached between the parties. The settlement agreement, dated June 11, 2010, contains, in pertinent part, the following provisions in which Complainant agreed:
(a) To voluntarily withdraw in their entirety all appeals, including but not limited to the MSPB appeal, Case No. DA-0752-10-0340-I-1, and other causes of action against the Jack C. Montgomery VA Medical Center; and waives her right to pursue further cause of action against Agency based on facts in existence as of the date of this Settlement Agreement . . .
(b) To waive any and all actions, MSPB claims, grievances, appeals, and proceedings of whatever nature against VA . . . taken as of the date of [Complainant's] execution of this Settlement Agreement . . . .
The Commission finds that, by the terms of the universal settlement agreement she reached with the Agency, Complainant agreed to waive her right to pursue the instant appeal, filed prior to the execution of the agreement.
Accordingly, Complainant's appeal is hereby DISMISSED.
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
August 19, 2010
__________________
Date
2
0120101905
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101905