01981517
02-18-1999
Joan H. Tichenor, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Joan H. Tichenor v. Department of the Army
01981517
February 18, 1999
Joan H. Tichenor, )
Appellant, )
)
v. ) Appeal No. 01981517
) Agency No. AWGJFO9707A0080
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was received by
appellant on November 18, 1997. The appeal was postmarked December 10,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed
appellant's complaint.
BACKGROUND
Appellant contacted an EEO counselor on June 30, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when:
(1) the agency failed to address the conflict of interest issue raised
by appellant in October 1996;
(2) the agency failed to process her grievance in accordance with the
terms of the Army Grievance System as defined in a negotiated settlement
agreement entered into by the parties;
(3) false and misleading information was supplied to the Office of
Worker's Compensation (OWCP) concerning appellant's work schedule;
(4) the agency continues to threaten to replace appellant from her
job with an outside candidate from the Department of Defense Priority
Placement Program (PPP);
(5) the agency proposes to reassign appellant outside the commuting area;
(6) the agency proposes to terminate appellant for failure to accept
the reassignment;
(7) the agency continues to deny appellant a workplace accommodation;
(8) the agency failed to process appellant's grievance in violation of
a settlement agreement entered into by the parties.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on August 27, 1997 appellant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the basis of reprisal (prior EEO activity).
On November 14, 1997, the agency issued a final decision dismissing
appellant's complaint for: stating the same claim that has been decided by
the agency; for failure to state a claim; for mootness and for raising a
matter that had been raised in an appeal to the Merit Systems Protection
Board (MSPB).
On appeal, the agency contends that an MSPB Initial Decision dated
December 22, 1997 has resolved the instant appeal. In her statements
on appeal, appellant maintains that the issues in her complaint dated
June 30, 1997 are separate from those raised in her MSPB appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.302(b) provides that an aggrieved person
may initially file a mixed case complaint with an agency or an appeal
on the same matter with the MSPB, but not both. 29 C.F.R. �1614.302(b)
further provides that if an individual files both a mixed case complaint
and an appeal on the same matter, whichever is filed first shall be
considered an election to proceed in that forum. EEOC Regulation 29
C.F.R. �1614.107(d) provides, in part, that an agency may dismiss a
complaint where the complainant has raised the same matter in an appeal to
the MSPB. The record herein indicates that appellant filed an appeal with
the MSPB from the agency's September 13, 1997 action removing appellant
from her position for her failure to accept a geographic reassignment.
The Board's decision indicates that the parties entered into a settlement
agreement at a December 17, 1997 hearing on appellant's removal.
The agreement provided as follows:
"Number one, the agency agrees to pay [appellant] her accumulated sick
leave; number two, [appellant] agrees to apply for disability retirement,
the agency agrees to cooperate of (sic) the filing and processing of
[appellant's] disability retirement application; number three, the agency
agrees upon [appellant's] filing for disability retirement to resend
(sic) the termination of [appellant] and place her on resignation due to
work-related illness status, and the effective date of the resignation
will coincide with the expiration of sick pay; number four, [appellant]
agrees that she will not appeal this action or her retirement in any
other forum, including the agency EEO forum as sometimes required for
workers' compensation and retirement benefits."
Based upon a review of the record, the Commission finds that appellant's
complaint is not properly before the Commission on appeal. The record
indicates that appellant filed an appeal with the MSPB that encompassed
the issues raised by her in her EEO complaint. After filing such appeal,
appellant freely entered into a settlement agreement with the agency,
which resulted in the voluntary dismissal of her appeal. Having entered
into a settlement agreement of the subject issues in the MSPB forum,
appellant may not now continue to pursue them through the EEO process. See
McClendon v. United States Postal Service, EEOC Appeal No. 01934503 (May
4, 1994), request for reconsideration denied, EEOC Request No. 05940645
(June 29, 1995).
The Commission further notes that allegation (1) of appellant's complaint
alleges that the agency has failed to address the substance of a conflict
of interest issue raised by appellant in October 1996. The record,
however, contains no specific evidence regarding any conflict from which
the Commission can make a decision. With respect to allegation (2)
regarding the agency's failure to process appellant's grievance in breach
of a negotiated settlement agreement, the Commission determines further
that the record contains no persuasive evidence regarding the agency's
alleged breach. In addition, allegation (2), as well as allegations
(3) and (8), appear to involve collateral attacks of the non-EEO forum.
Such allegations are properly dismissed for failure to state a claim.
Appellant is advised, however, that if allegations (1) and (2) concern
issues raised by appellant in a prior complaint, her concerns should be
raised within the context of said prior complaint. See EEO Management
Directive (MD) 110 at 4-8 (October 22, 1992) which requires the agency to
refer a complainant alleging improper processing to the agency official
responsible for the quality of complaints processing.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a
timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is
received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
Feb 18, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations