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.