0520140344
04-08-2016
Brook V.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brook V.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Request No. 0520140344
Appeal No. 0120140555
Agency No. 2004-0613-2009104175
DISMISSAL OF REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120140555 (April 9, 2014). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
In our previous decision, we modified the Agency's determination that it had not breached the settlement agreement. Although we modified the Agency's determination, we nevertheless found that the Agency had not breached the settlement agreement. Specifically, we found that Complainant, through her attorney, did not show that the settlement agreement should be voided as vague or lacking consideration. In finding the agreement enforceable, we noted that Complainant was provided with a reassignment, among other considerations, in exchange for the withdrawal of her complaint. We noted that Complainant was provided with the Compensation and Pension (C&P) Physician Reviewer position as the settlement agreement specified. We noted, however, that the crux of Complainant's breach claim related to her dissatisfaction with the C&P Physician Reviewer position to which she agreed in the settlement agreement. Notwithstanding, we found that Complainant's displeasure with the position did not amount to a breach of the agreement. With respect to Complainant's contention that she had not received the $1,000 in education pay as the agreement specified, we noted that she did not submit any documentation to the Agency for reimbursement of continuing physician education courses. Although we found no breach of the agreement, we nevertheless ordered the Agency to provide Complainant with Standard Form 50 (SF-50) and an organizational chart reflecting that she in fact held the C&P Physician Reviewer position.
In her request for reconsideration, Complainant, through her attorney, in pertinent part, alleges that the Agency has produced no evidence that it had actually reassigned her to the C&P Physician Reviewer position pursuant to the settlement agreement. Complainant indicates that the Agency could not produce the SF-50 documenting that she had been reassigned to the C&P Physician Reviewer position, and it could not produce any organizational chart reflecting that she was functioning in that position. Complainant also asserts that, according to the language of the agreement, there is no requirement that she submit documentation justifying the payment of the $1,000 in education pay. Rather, the agreement simply states the Agency's obligation to pay it.
Upon review, the Commission notes that on January 4, 2016, Complainant filed a civil action (identified as Civil Action No. 3:16-CV-1) in the U.S. District Court for the Northern District of West Virginia. A review of the complaint filed with the District Court shows that Complainant has alleged that she was subjected to discrimination when she was terminated from employment. In addition to alleging wrongful termination, the civil complaint also alleges that the Agency breached the instant settlement agreement.
The regulation found at 29 C.F.R. � 1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (Oct. 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (Oct. 25, 1988). Therefore, we determine that Complainant has filed a civil action regarding her allegation that the Agency has breached the settlement agreement.
CONCLUSION
Accordingly, Complainant's request for reconsideration is DISMISSED. See 29 C.F.R.
� 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 8, 2016
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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