01a44467
10-28-2004
Pamela M. Chester, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Pamela M. Chester v. Department of Veterans Affairs
01A44467
October 28, 2004
.
Pamela M. Chester,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44467
Agency No. 200H-0532-2003-103219
DECISION
Complainant filed a timely appeal with this Commission from an agency
final determination dated May 28, 2004, concerning a September 8, 2003
settlement agreement. The Commission accepts the appeal. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The September 8, 2003 settlement agreement provided, in pertinent part,
that:
(2) The agency shall: Provide a written clarification of [complainant's]
role and responsibilities at the "ROPC."
(3) Both parties also stipulate and agree that: They will discuss/clarify
issues with [named management official and complainant], as appropriate,
if [there are] questions on issues, or before going elsewhere for
information, discussion or actions.
By letter to the agency dated November 10, 2003, complainant alleged
that the agency breached the settlement agreement when it reassigned
her to the Education Department. In response, the agency issued a final
determination dated March 19, 2004, finding that the settlement agreement
was void because the provisions were too vague to be enforced and because
complainant did not receive adequate consideration under its terms.
The agency then advised complainant that her underlying complaint would
be reinstated at the counseling stage, where the previous processing
had ceased upon the execution of the settlement agreement.
According to the record, complainant did not file an appeal from the
March 19, 2004 final determination. The agency reinstated complaint
processing, and complainant filing a formal complaint on April 4, 2004.
Notwithstanding these actions, on May 28, 2004, the agency issued an
"amended" final determination, finding that based on a statement
from a management official, the agency complied with provision 2.
However, the agency re-affirmed its finding that provision 3 was void,
and acknowledged that it had already reinstated complaint processing,
and that complainant filed a formal complaint on April 4, 2004.
On appeal, complainant argues that it was improper for the agency to
issue an amended decision, and disputes the statement of the named
management official. Complainant requests that the Commission insure
that her rights are protected. In response, the agency, in pertinent
part, indicates that although it amended its March 19, 2004 decision,
its May 28, 2004 decision nonetheless recognizes that the settlement
agreement is void.
The Commission determines that based upon its March 19, 2004
determination, the agency declared the settlement agreement void,
and complainant did not file an appeal from that decision. Based on
the mutual understanding that the settlement agreement was void, both
parties engaged in the continued processing of the underlying complaint,
resulting in the filing of a formal complaint on April 4, 2004. Based on
this evidence, we find that the settlement agreement was rescinded by
the parties as of March 19, 2004, prior to the issuance of the agency's
May 28, 2004 "amended" determination on complainant's breach claim.
Accordingly, we find that the agency improperly issued the May 28, 2004
determination, and we vacate that decision. In doing so, we again note
that on appeal the agency recognizes that the settlement agreement is
void and that it must process the captioned complaint.
In conclusion, we find that the settlement agreement at issue is void,
and we VACATE the agency's May 28, 2004 (amended) final determination,
and we REMAND this case to the agency with an ORDER to continue processing
of the captioned complaint.
ORDER
The agency is ORDERED to take the following action:
Upon receipt of this decision, and to the extent that it may not already
have done so, the agency is ordered to continue the processing of the
captioned complaint, which complainant filed on April 4, 2004.
A copy of pertinent documentation confirming compliance with this Order
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
October 28, 2004
__________________
Date