01974475
08-27-1999
Linda M. Thompson, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Linda M. Thompson v. Department of Veterans Affairs
01974475
August 27, 1999
Linda M. Thompson, )
Appellant, )
) Appeal No. 01974475
v. ) Agency No. 950592
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision not to reinstate
her complaint of unlawful discrimination that the parties had previously
settled through mutual agreement. See 29 C.F.R. �1614.504; EEOC Order
No. 960, as amended. The issue on appeal is whether the agency properly
rejected appellant's request to reinstate.
Appellant filed formal EEO complaints on August 25, 1992, and October
8, 1992, alleging discrimination. On April 26, 1993, the parties
entered into a settlement agreement which provided, in pertinent
part, that appellant will be free from reprisal, coercion, harassment
and intimidation. After appellant alleged that the agency's further
harassment constituted a breach of the settlement agreement, the agency
issued a final decision dated February 3, 1994, wherein the agency denied
that the settlement agreement was breached. Appellant then appealed to
this Commission, which on August 30, 1994, determined that there had been
no breach of the settlement agreement. Hart v. Department of Veterans
Affairs, EEOC Appeal No. 01942181 (August 30, 1994). The Commission
held that a complaint alleging reprisal or further discrimination in
violation of a settlement agreement's "no reprisal" clause, is to be
processed as a separate complaint and not as a breach of settlement.
See 29 C.F.R. �1614.504(c); Blinco v. Department of the Treasury, EEOC
Request No. 05931127 (May 12, 1994). The case was remanded to the agency
for processing of the new and separate retaliation claim.
Pursuant to the Remand Order, the agency investigated the harassment
claim. Prior to the completion of the investigation, the parties
enter into a second settlement agreement on January 23, 1995, which
among other things, promised that appellant would be free of reprisal,
coercion, harassment and intimidation. In February 1997, appellant
requested that the agency reinstate all of her prior EEO complaints.
Appellant alleged that the agency breached the settlement agreement in
that she continued to experience harassment and intimidation because of
her prior EEO activities. The agency denied the request to reinstate
finding that it had not breached the settlement agreement. Thereafter,
appellant filed this appeal.
In pertinent part, 29 C.F.R. �1614.504(c) states that "[a]llegations
that subsequent acts of discrimination violate a settlement agreement
shall be process as separate complaints under �1614.106 or �1614.204,
as appropriate, rather than under this section [which addresses
non-compliance]." The Commission has held that an allegation that the
agency violated a generalized, non-discrimination or non-retaliation
clause of a settlement agreement shall be processed as a separate
complaint and not as a breach of the settlement agreement. See Warren
v. Department of the Army, EEOC Request No. 05960552 (April 10, 1997);
Blinco, supra. In this case, appellant alleges that the agency's
subsequent acts of retaliation breached the settlement agreement's
provision promising her a work environment free from reprisal, coercion,
harassment and intimidation. As noted above, such an allegation is not
considered a breach of the settlement agreement but instead, a separate
complaint of discrimination. Therefore, after a careful review of the
record, we VACATE the agency's decision finding that the agency did
not breach the settlement agreement and REMAND appellant's allegations
for further processing in accordance with this decision, the applicable
regulations, and the Order below.
ORDER
To the extent that it has not already done so, the agency is directed,
pursuant to 29 C.F.R. �1614.504(c), to process appellant's retaliation
allegations as separate complaints of discrimination. The agency shall
acknowledge to the appellant that it has received the remanded allegations
within thirty (30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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)(Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
August 27, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations