0120112936
10-24-2011
John Briggs, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
John Briggs,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112936
Agency No. 200305202010104702
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated April 22, 2011, dismissing his 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
At the time of events giving rise to this complaint, Complainant worked
as a Medical Support Assistant at the Agency’s facility in Biloxi,
Mississippi.
On February 2, 2011, Complainant filed a formal EEO complaint alleging
that the Agency subjected him to discriminatory harassment on the bases
of his religion (Muslim), as well as retaliation for prior protected
EEO activity, when:
1. on April 29, 2010, the Complainant’s work computer was confiscated
and an investigation initiated for alleged privacy violations;
2. on May 5, 2010, the Complainant was accused of misusing government
equipment; and
3. on July 23, 2010, the Complainant’s request to return his documents
from the confiscated hard drive was denied.
Complainant first contacted an EEO counselor on April 29 2010, concerning
the confiscation of his computer and related investigation (allegation
1). During the course of the counseling, he also raised the May 2010
accusation that he misused government equipment (allegation 2). Following
counseling, Complainant was issued a notice of right to file a formal EEO
complaint, but did not do so. Instead, the record contains a withdrawal
form dated August 19, 2010, withdrawing this matter from the EEO process.
On September 1, 2010, Complainant again initiated contact with an EEO
counselor and raised the allegation concerning his July request for the
return of his confiscated documents (allegation 3). In November 2010,
he opted to participate in mediation of this claim. Information in
the file indicates that there was a “verbal agreement” between
Complainant and “the Director” in which Complainant agreed to
withdraw his complaint. It is unclear exactly what the terms of the
agreement were, but Complainant signed a withdrawal of his complaint
form on November 3, 2010. Nonetheless, the Agency sent him a notice
of right to file a formal complaint, which he received on December 2,
2010.1 Complainant filed a formal EEO complaint on February 2, 2011.
The Agency dismissed the complaint based on the withdrawal forms signed
during the counseling stage. In the alternative, the Agency asserted
the entire matter should be dismissed for failure to file a timely
formal complaint. The instant appeal followed.
ANALYSIS AND FINDINGS
Dismissal Based on Withdrawal Forms
The record clearly establishes that in August 2010, Complainant clearly
and unequivocally withdrew his EEO claims concerning the matters raised
in allegations 1 and 2. Therefore, the Agency’s dismissal of these
allegations, to the extent they were raised in his February 2011 complaint
as any more than background evidence, was correct.
With regard to allegation 3, the Agency does not dispute Complainant’s
contention that in November 2010 there was a “verbal” settlement
of his claim following mediation which led Complainant to signing a
withdrawal form on November 3, 2010. No terms of this agreement are
contained in the record. EEOC regulations require that all settlements be
in writing and signed by both parties and identify the claims resolved. 29
C.F.R. § 1614.603. As such, under the facts as presented in this case,
any verbal agreement which required Complainant to withdraw his claim will
not be enforced and Complainant will not be bound by the December 2010
withdrawal resulting from that agreement. Accordingly, the Agency’s
dismissal of allegation 3 based on the withdrawal of that allegation
is reversed.
Dismissal Based on Untimely Filing of Complaint
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails
to comply with the applicable time limits contained in 29 C.F.R. §
1614.106(b) which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving the notice of the right to do so.
In the instant case, it is undisputed that Complainant received the notice
of right to file concerning allegation 3 on December 2, 2010, but did
not file his formal complaint until February 2, 2011, well beyond the
fifteen-day limitation period. Moreover, an examination of the notice
reveals that it properly advised Complainant of the filing deadline.
Based on these facts, the Agency dismissed the complaint as untimely
filed.
Complainant, however, argues that as part of the “verbal agreement”
resulting from the mediation, he expected to receive a copy of an
inspection report into his computer use.2 Once Complainant received
the report, he promptly filed his formal complaint, albeit after the
fifteen-day limitation period. While not altogether clear, it appears
that Complainant is asserting that he was entitled, under the terms of the
verbal agreement, to hold off filing until he received the report. As the
agreement was never reduced to writing, we have no way of determining
whether there is support for this assertion. This illustrates the reason
for the Commission’s regulation requiring that agreements settling EEO
complaints be in writing. Due to the confusion in this matter caused
by the verbal settlement, we cannot affirm the Agency’s dismissal of
allegation 3 for untimely filing of the complaint.
Accordingly, the Agency’s dismissal of allegations 1 and 2 is AFFIRMED,
and the dismissal of allegation 3 is REVERSED and this part of the
complaint is REMANDED to the Agency for further processing in accordance
with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim (allegation 3
concerning the failure to return Complainant’s computer files)
in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall
acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The Agency shall issue to Complainant a copy of the investigative file
and also shall notify Complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the Complainant requests a final decision without a hearing, the
Agency shall issue a final decision within sixty (60) days of receipt
of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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 24, 2011
__________________
Date
1 The Agency now claims that the notice of right to file was sent due
to an administrative error.
2 The report indicates that someone reported that Complainant was writing
a book on his work place computer during working hours. A manuscript of
a recently published book was found on his computer. Numerous findings
were made regarding Complainant’s computer use and he was provided a
replacement computer to perform his assigned duties.
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0120112936
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112936