01A15030_r
12-09-2002
Michael L. Brown, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Michael L. Brown v. Department of the Navy
01A15030
December 9, 2002
.
Michael L. Brown,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A15030
Agency No. DON-01-00181-015
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 8, 2001, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
In his formal complaint, complainant alleged that he was subjected to
discrimination on the bases of disability and in reprisal for prior
protected activity when the agency removed him effective March 15, 2001.
In a final decision dated August 8, 2001, the agency dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
Specifically, the agency concluded that complainant's March 15, 2001
removal is covered by the terms of a Merit System Protection Board (MSPB)
agreement executed on March 1, 2001.
On appeal, complainant maintains that the MSPB settlement agreement does
not cover this matter and that his complaint should be processed within
the EEO process. In response, the agency argues that this matter is
not within the scope of EEO review, because it involves matters governed
by the MSPB settlement agreement.
The record reveals that complainant had been initially separated from
agency employment on November 15, 2000, because of a disability that
rendered him unable to perform the essential duties of his position.
On March 1, 2001, complainant and the agency entered into an MSPB
settlement agreement. The agreement provided, in pertinent part, that:
The agency agrees to cancel [complainant's] removal effective November
15, 2000. [Complainant] will receive no backpay and will be carried in
a leave without pay status from November 15, 2000, until the date he
returns to duty after signing this agreement;
This agreement is entered into with the understanding that the agency
expects [complainant] to remain alert at all times and not dose off/fall
asleep while performing duties to which assigned, whether such duties
are considered to be monotonous, repetitious, or boring, and whether
such dosing off/falling asleep is related to medical reasons. Further,
[complainant] is expected to engage in no misconduct of any kind.
If management determines that, during the two year period following
the signing
of this agreement, [complainant] was asleep while in a duty status
for any reason,
or that during the one year period following this agreement the
[complainant] has
engaged in misconduct involving misuse of government information systems,
including but not limited to storing, downloading, or transmitting
sexually explicit material on government owned computers at any
time, [complainant's] removal will be effected. [Complainant] hereby
voluntarily waives all rights to challenge, and all procedural rights
for, any removal action taken as a result of such sleeping or misuse of
government information systems. The waived rights include, but are not
limited to, the rights to appeal to the Merit Systems Protection Board,
to file a grievance, to file a civil action in any court or other body
of competent jurisdiction, and to file a complaint of discrimination;
The parties understand and agree that this Settlement Agreement is
enforceable by the Merit Systems Protection Board and will be made a
part of the Board's record in this appeal.
Following the execution of this agreement, complainant was returned to
duty on March 5, 2001. However, complainant was again discharged from
agency employment, on March 15, 2001, for sleeping on duty. It is this
second discharge that is the subject of the instant complaint.
Upon review, the Commission finds that the agency improperly dismissed
complainant's complaint. The Commission notes that provision 7 of the
MSPB settlement agreement, identified in the agency's final decision,
indicates that complainant waives all rights to challenge any removal
action taken because of sleeping or misuse of government information
systems; and that the waived rights include but are not limited to the
right to appeal to the MSPB, to file a grievance, to file a civil action
in any court or other body of competent jurisdiction, and/or to file a
discrimination complaint.
We have held that complainants may waive the right to pursue EEO claims
arising on or before the date of settlement; however, they may not waive
their rights to challenge future actions because such provisions are
against public policy. Morris v. USPS, EEOC Request No. 05900060
(May 31, 1990); Mole v. Department of the Treasury, EEOC Request
No. 05920235 (June 4, 1992). A knowing waiver made without duress
against bringing an EEO action concerning a prior removal is valid, but
a waiver to bring an EEO action concerning a future removal is invalid.
In the instant complaint, complainant alleged that the agency subjected
him to unlawful discrimination when it removed him on March 15, 2001.
The MSPB settlement agreement was reached between the parties on March
1, 2001. Because the instant complaint concerns a removal action that
occurred after the parties entered into the MSPB settlement agreement,
complainant could not validly waive his right to pursue this matter
through the EEO process.
Accordingly, the Commission REVERSES the agency's dismissal of
complainant's complaint and REMANDS this matter to the agency for further
processing in accordance with the ORDER set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0501)
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 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 (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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
December 9, 2002
__________________
Date