01A15009_r
04-03-2002
Sue A. Higgins, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Sue A. Higgins v. Department of the Army
01A15009
April 3, 2002
.
Sue A. Higgins,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A15009
Agency No. AVEJFO0105B0070
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 25, 2001. The issue in this case is whether the
agency properly applied the provisions of a settlement agreement entered
into on September 14, 2000, when dismissing the instant complaint.
In a formal complaint filed on June 14, 2001, complainant alleged that
she was subjected to discrimination in reprisal for prior EEO activity
when on April 12, 2001, she discovered that she had been nominated in
July 2000 for an Eagle Award by her supervisor (S-1), but that S-1 had
then withdrawn the award in August 2000.
The agency dismissed the claim on the grounds that complainant had
signed the above referenced settlement agreement, which stated in
pertinent part that complainant agreed to file no new EEO complaints
concerning an employment action �arising or accruing� before the date
of the settlement agreement.
On appeal, complainant contends, in pertinent part, that because the
agency was unable to produce any documentation showing when the award
was disapproved, �all original documentation shows that this award was
pulled after my filing the [previous] EEO complaint� on August 1, 2000.
She further contends that the matter of the denial of the award could
not have been part of the settlement agreement because she did not find
out that the award had been withdrawn until the following year.
In response, the agency notes that the settlement agreement took effect
on September 19, 2000, and contends �that the facts show that the award
was withdrawn in the July 2000 timeframe that is more than two months
before the agreement at issue was executed.� The agency contends that the
award disapproval was an employment action that accrued before the date
the settlement agreement was executed; and that therefore complainant
could not file an EEO complaint regarding this matter, under the terms
of the settlement agreement.
The Commission disagrees. There is no documentary evidence in the
record regarding the precise date that the award was disapproved by
the agency Director, who made the final determination on this matter.
The record contains a copy of an EEO Counselor's Report, wherein, the
Director told the EEO Counselor that he could not �recall exactly when
I disapproved the 7 July 2000 [award] request ... if it was the day I
received the certificate for my endorsement.� In addition, the Report
indicates that when the EEO Counselor asked him, �Did you cancel the
award on or before 11 July 2000, which is the date on the MWR FAX to
Marketing?�, the Director replied, �I honestly can't remember if it
was or not.� Moreover, the Report indicates that an Illustrator in
the Marketing Division who was assigned to process the award could not
remember if the award was canceled � on 31 July 2000 or thereafter.�
Regardless of the precise date the award was disapproved, complainant
was not aware of the purported discriminatory event at the time that the
agreement was executed, and could not have agreed to waive her right
to purse it, because that �right� was not triggered until she became
aware of the alleged discriminatory event. The Commission has held that
complainants may waive the right to pursue an EEO claim that arose on
or before the date of settlement; however, they may not waive the right
to challenge future claims. See Mole v. Department of the Treasury,
EEOC Request No. 05920235 (June 4, 1992).
Accordingly, the agency's final decision dismissing the complaint
is REVERSED. The complaint is hereby REMANDED for further processing
in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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
April 3, 2002
__________________
Date