0120123184
01-09-2013
Jacqueline Haynes, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jacqueline Haynes,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123184
Agency No. 2004-0020-2012100196
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 23, 2012, 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
During the period at issue, Complainant worked as a Vocational Rehabilitation Counselor, GS-13, at the Agency's Veterans Benefits Administration in Washington, DC.
On January 20, 2012, Complainant filed a formal EEO complaint (Agency No. 2004-0020-2012100196) alleging that the Agency subjected her to discrimination on the basis of reprisal for prior EEO activity when:
1. in August 2008, she was not selected for the FY 08 Training Specialist position;
2. around October 2008 or November 2008, she did not receive a lateral transfer to the position of Outreach Coordinator;
3. on September 10, 2009, she was not accepted for a lateral transfer to the position of Program and Project Management Team;
4. in September 2009, management denied her application for mentoring by the National Cemetery Administration;
5. in November 4, 2010, management rated her fully successful in the category of External Relations;
6. in January 2011, management delayed a supervisory recommendation for a VA Leadership program which resulted in her application being withdrawn;
7. on October 11, 2011, she was not selected by [named Agency official] for the position of Executive Administrative Assistant; and
8. on February 27, 2012, she was called to a meeting with [Director, VBAVACO], and the topic of discussion was her EEO complaint.
On March 15, 2012, Complainant entered into a settlement agreement with the Agency resolving all the matters identified in the complaint. On July 23, 2012, the Agency issued a final decision dismissing the complaint based on the settlement agreement.
However, in its dismissal decision, the Agency also noted that Complainant, after the settlement, had requested that the settled complaint be amended to include three new claims: (a) in June 2012, an Agency official called Complainant to his office and accused Complainant of being disrespectful; (b) on June 15, 2012, Complainant's supervisor requested medical information; and (c) on or about June 2010 to the present, she has unsuccessfully requested an accommodation.
The Agency acknowledged that on July 9, 2012, it mistakenly issued a determination accepting the three additional claims [claims (a) - (c)]. However, in its July 23, 2012 final decision, the Agency corrected this mistake by rescinding the amendment of the settled complaint to include claims (a) - (c) because the underlying formal complaint had been settled prior to the events at issue in the proposed amendments. The Agency advised Complainant to initiate contact an EEO Counselor if she wishes to pursue the additional allegations.
The instant appeal followed.
ANALYSIS AND FINDINGS
It is undisputed that Complainant and the Agency settled all the matters pending in Agency Case No. 2004-0020-2012100196 in the March 12, 2012 settlement agreement. In that agreement, Complainant agreed, in pertinent part, that she would
a. Voluntarily withdraws all pending informal and formal EEO complaints, including but not limited to EEO Case No. 2004-0020-2012100196.
b. Waives any and all actions, claims, complaints, EEO complaints, grievances, appeals and proceedings of whatever nature against the Agency, its past and present officers and employees, in their personal as well as their official capacities, including attorney fee, which are now or hereafter may be asserted by her or on her behalf based on any action taken as of the date of Complainant's execution of this Agreement, with the exception of any claims that may arise by reason of breach of any term of this Agreement.
. . . .
Upon review, we find that Complainant, upon signing the agreement, was precluded from further pursuing the formal complaint in Agency No. 2004-0020-2012100196. Therefore, there was no pending complaint to amend at the time she raised claims (a) - (c). Accordingly, the Agency's dismissal of Complainant's formal complaint is AFFIRMED.
However, the Agency should consider claims (a) - (c), which occurred after the settlement agreement, as separate newly raised claims. The Agency has already informed Complainant of the possibility of contacting an EEO Counselor on these matters. However, given the specific circumstances of this case, claims (a) - (c) are REMANDED to the Agency for further processing, in accordance with the ORDER below.
ORDER
The Agency is ORDEED to provide Complainant with EEO counseling on the matters identified as claims (a) - (c). Within thirty (30) calendar days from the date that this decision becomes final, the Agency shall provide Complainant with written acknowledgement that she will be provided EEO counseling, and information on how to arrange an appointment. If the matter does not resolve during counseling, the Agency shall issue Complainant a timely Notice of Right to File a Discrimination Complaint.
A copy of the Agency's acknowledgement to Complainant that she will be provided EEO counseling on claims (a) - (c), and a copy of the Notice of Right to File a Discrimination Complaint if the matters are not otherwise resolved, must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant 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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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
January 9, 2013
__________________
Date
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0120123184
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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