01a51957
04-06-2005
Kittie Arvie, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Kittie Arvie v. Department of Justice
01A51957
April 6, 2005
.
Kittie Arvie,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A51957
Agency No. P-2004-0039
Hearing No. 330-2004-00169X
DECISION
Complainant filed a timely appeal with this Commission from an agency
order, dated December 15, 2004, pertaining to her formal 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO Counselor claiming that she was subjected
to harassment when she was verbally admonished, harshly supervised, and
evaluated unfairly. Informal efforts to resolve complainant's concerns
were unsuccessful. On November 4, 2003, complainant filed the instant
formal complaint, based on race.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).
On October 21, 2004, the AJ issued a decision without a hearing,
dismissing the complaint. The AJ determined that the matters raised in
complainant's EEO complaint are inextricably intertwined with issues
that were appealed to the Merit Systems Protection Board (MSPB) and
resolved by an October 15, 2004 settlement agreement. Specifically,
the AJ noted that in complainant's September 2004 MSPB appeal (MSPB
Docket No. DA-0432-0692-I-1), complainant claimed that she had been
demoted when her �supervisor imposed a harsh penalty and evaluated her
differently compared to her Caucasian coworkers.� The AJ further noted
that the MSPB appeal claimed racial discrimination when complainant
�received negative log entries and performance evaluations which led to
placing her on a performance improvement plan and a demotion.� The AJ
concluded that the matters in complainant's instant EEO complaint,(verbal
admonishments and harsh supervision which resulted in poor performance
entries), are so irrevocably intertwined with the demotion they should be
considered together. The record reflects that complainant's MSPB appeal,
regarding the demotion, was settled by an October 21, 2004 agreement.
The settlement language obligated complainant not to litigate, in any
forum, any issues arising from the actions involved. Consequently,
the AJ found that complainant's EEO complaint should be dismissed.
On December 14, 2004, the agency issued a final order fully implementing
the AJ's decision. The agency noted that �both [the EEO and MSPB] claims
are based upon the set of facts that complainant was treated harshly and
evaluated unfairly by supervisors because of her race (and in the case of
the later MSPB case, resulting in her demotion).� The agency stated that
�once the MSPB decision became final through the settlement agreement,
the EEO complaint was no longer viable.�
The record reveals that on September 3, 2004, after filing her
EEO complaint, complainant filed an appeal with the MSPB regarding
her demotion. Specifically, complainant claimed that her supervisor
�imposed a harsh penalty and evaluated me differently compared to my
Caucasian coworkers.� Moreover, she alleged that �[d]ue to my race,
I received negative log entries and performance evaluations which lead
to placing me on a Performance Improvement Plan and a demotion.�
The record further reveals that complainant settled her MSPB appeal with
an agreement executed on October 15, 2004. Paragraph (2) of the agreement
provides that complainant agrees �not to litigate or re-litigate in any
forum, judicial or administrative, any issues arising from the actions
involved in this forum. The Appellant further agrees to waive any and
all Appellant rights as to any and all issues she may have had arising
out of the facts and issues of the above-captioned appeal.�
The Commission agrees with the AJ's decision to dismiss the complaint. We
find that the matters raised in complainant's EEO complaint were also
included in her MSPB appeal, regarding her demotion.
Accordingly, the agency's final order implementing the AJ's dismissal
was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 6, 2005
__________________
Date