01a44708
04-13-2005
Vincent N. Tittle, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Vincent N. Tittle v. Department of Veterans Affairs
01A44708
April 13, 2005
.
Vincent N. Tittle,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44708
Agency No. 200N-0002-2004-100450
DECISION
Complainant filed this appeal with the Commission from a May 25, 2004
agency decision, dismissing his complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant alleged that he was discriminated against on the basis of
reprisal for prior EEO activity when: (1) complainant was constructively
discharged; (2) complainant was denied compensation or restoration
for eight hours of annual leave; and (3) the agency failed to respond
to Freedom of Information Act (FOIA) requests. Regarding claim 1, the
agency stated that complainant retired pursuant to a settlement agreement
and, further, that complainant did not satisfy the three-prong test for a
constructive discharge. The agency also stated that complainant had noted
that the buyout was offered on September 8, 2003, and that complainant
had already retired. Regarding claim 2, the agency indicated that
since the matter occurred on February 21, 2003, complainant waived his
right to pursue this action under the terms of the settlement agreement.
Regarding claim 3, the agency stated that remedies for violations of FOIA
and the Privacy Act must be pursued under the provisions of those acts.
The record reveals that complainant entered into a settlement agreement
on June 30, 2003. In the settlement agreement, complainant agreed to
withdraw his discrimination complaint in Agency No. 200P-0002-992904,
grievances and other causes of action against the agency and waived
his right to pursue future causes of action against the agency, its
officials or its employees based on facts in existence as of the date
of the complainant's execution of the settlement agreement, with the
exception of any claims alleging a breach of the settlement agreement.
The settlement agreement provided that complainant would retire effective
September 3, 2003, and indicated that the retirement was "completely
voluntary." The settlement agreement also provided that complainant
was to be promoted to the grade of a GS-15 effective September 3, 2003,
that he could, without agency opposition, begin using his accrued leave
beginning July 2, 2003, and that he could remain on annual leave until
his retirement on September 3, 2003.
The record contains a copy of a March 26, 2003 electronic mail message
which indicates that the agency informed complainant that he was entitled
to administrative leave for the February 21, 2003 deposition. In a July
17, 2003 electronic mail message, complainant informed the agency that he
had not been given credit for the leave when he attended the deposition.
The record contains a Memorandum, dated September 8, 2003, from the Deputy
Assistant General Counsel to employees of the Office of General Counsel
(OGC) regarding voluntary separation incentive payments. The Memorandum
indicates voluntary separation incentive payments could be offered
to employees who took regular or early retirement or resigned. The
Memorandum also indicates that voluntary incentive payments would
be offered to employees who left the agency from September 24, 2003,
through September 30, 2003, and OGC would offer these employees buyouts.
Regarding claim 1, the Commission finds that complainant fails to state a
claim because the matter was previously settled. Specifically, the June
30, 2003 settlement agreement reflects that complainant agreed to retire
as part of the agreement. Concerning the buyout, the record reveals
that the buyout was offered to OGC employees on September 8, 2003, after
complainant had retired pursuant to the settlement agreement. Therefore,
complainant lacked standing to claim that he was an aggrieved employee.
Complainant has failed to show harm to a term, condition, or privilege
of his employment for which there is a remedy. See Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Regarding claim 2, the record reveals that the claim regarding leave was
known to complainant at the time the settlement agreement was entered.
Claim 2 therefore fails to state a claim because the settlement agreement
reflects that complainant waived his right to pursue that issue when
complainant agreed not to pursue future causes of action against the
agency, its officials or its employees based on facts in existence as
of the date of the complainant's execution of the settlement agreement.
Regarding claim 3, the Commission finds that it fails to state
a claim within the purview of the EEOC regulations. We have held
that the Commission does not have jurisdiction over FOIA violations.
Individuals having a dispute regarding such requests should bring any
appeals about the processing of his FOIA request under the appropriate
FOIA regulations. See Gaines v. Department of the Navy, EEOC Request
No. 05970386 (June 13, 1997).
We note that complainant is not challenging any matter in the settlement
agreement in the instant matter. The Commission previously found
no breach of the settlement agreement. Tittle v. Department of
Veterans Affairs, EEOC Appeal No. 01A40991 (Apr. 16, 2004), req. for
reconsideration denied, EEOC Request No. 05A40817 (May 27, 2004).
The agency's decision dismissing the complaint is AFFIRMED.
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
April 13, 2005
__________________
Date