Lynn Johnston, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 26, 2002
01A12225_r (E.E.O.C. Sep. 26, 2002)

01A12225_r

09-26-2002

Lynn Johnston, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Lynn Johnston v. Department of Veterans Affairs

01A12225

September 26, 2002

.

Lynn Johnston,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A12225

Agency No. 98-11503

Hearing No. 220-A0-5137X

DECISION

Complainant filed an appeal with the Commission from an Administrative

Judge (AJ)'s decision dated December 6, 2000, dismissing her complaint

after finding that complainant's allegations were addressed and resolved

in a settlement agreement executed on July 6, 1998. The agency

did not issue a final decision for Agency No. 98-1503, the Commission

deems the AJ's decision to be the agency's final order. See 29 C.F.R.

� 1614.109(j).

The record reveals that during the relevant time, complainant was employed

as a Food Service Worker in the Veterans Canteen Service. The record

reflects that on June 25, 1998, complainant, through her representative,

sought EEO counseling regarding a proposed transfer and various acts

of purported harassment. Complainant alleged discrimination based on

disability, sex and age when:

(a) her supervisor proposed to reassign her to another facility;

(b) her supervisor told her that she was not doing a good job and that

he was going to get someone who could do her job better than she could;

(c) her supervisor continuously harassed her by repeatedly addressing

her as �retard� and other derogatory names; and

(d) her supervisor harassed her when, during a staff meeting, they

talked about her in front of everyone and said things like, �she can't

do anything right� and �she can't do her job.�

The informal complaint was identified as Agency No. 98-1473.

On July 6, 1998, complainant and the agency entered into the subject

agreement in resolution of the above referenced matter.

The settlement agreement provided, in pertinent part that the agency:

a. Withdraw the reassignment to the Wade Park facility issued to the

complainant in the memo dated May 12, 1998.

The record reveals that an agency EEO Counselor was subsequently directed

to process complainant's claims despite the July 6, 1998 settlement

agreement, by issuing a notice of final interview. The record further

reveals that complainant filed a formal complaint on July 24, 1998,

regarding claims (a) - (d) discussed above. This complaint was identified

as Agency No. 98-1503.

On September 16, 1998, although the instant settlement agreement was

entered into, the agency accepted complainant's complaint (under Agency

No. 98-1503) for processing. On December 3, 1999, the agency issued

complainant an Advisement of Rights Letter which advised that complainant

had thirty days to elect a hearing or a final agency decision. By letter

dated January 5, 2000, complainant requested a hearing before an EEOC

Administrative Judge (AJ).

On December 6, 2000, the AJ issued a decision dismissing complainant's

complaint after finding that complainant's allegations were addressed

and resolved in the settlement agreement executed on July 6, 1998.<1>

In her decision, the AJ advised complainant to file any allegations

of breach of the July 6, 1998 settlement agreement under 29 C.F.R. �

1614.504. However, the record reflects that the agency never issued a

final order in this case. The record shows that when complainant failed

to receive final action from the agency, she filed the instant appeal

with the Commission on January 12, 2001.

The regulation set forth at 29 C.F.R. 1614.107(a)(1) provides that the

agency shall dismiss a complaint that states the same claim that is

pending before or has been decided by the agency or

Commission.

The Commission determines that the July 6, 1998 settlement agreement

addresses the same matters raised in Agency No. 98-1503. Accordingly, the

Commission finds that the agency's final order to dismiss the complaint

was proper and the decision is AFFIRMED.

Finally, the record fails to reflect that complainant is raising a

breach claim. EEOC Regulation 29 C.F.R. � 1614.504 provides that if

a complainant believes that a settlement agreement has been breached,

the complainant shall notify the agency of the alleged breach. If the

agency does not respond with 35 days after receiving notice of breach,

the complainant may appeal to the Commission. Therefore, complainant

is hereby advised that if she wishes to file a breach claim, she should

raise her concerns with the agency.

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

September 26, 2002

__________________

Date

1The Commission notes that the AJ refers

to �two� settlement agreements entered into in July 1998. However,

it appears that this refers to the fact that complainant and one agency

official signed the settlement agreement on July 6, 1998; and that another

agency official signed an unexecuted copy of the same agreement on the

same date.