0120172962
02-06-2018
Darla W.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darla W.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120172962
Agency No. 8E1G17003
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 2, 2017, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to equal employment opportunity (EEO) Complaint 3, Complainant was a rejected applicant for the position of Staff Judge Advocate at the Agency's Barksdale Air Force Base in Louisiana (December 2015), and a terminated Attorney-Advisor (Contract) during her probationary period from the Agency's Maxwell Air Force Base Gunter Annex in Alabama (effective March 7, 2017).
Complainant previously filed EEO Complaint 1 (not hired) and Complaint 2 (termination) on the above matters. Complaint 1 is pending before an EEOC Hearings Unit Administrative Judge (AJ) in the New Orleans Field Office and Complaint 2 is pending before an EEOC Hearings Unit AJ in the Birmingham District Office.
On July 14, 2017, Complainant filed EEO Complaint 3 alleging that the Agency discriminated against her based on age (56) and reprisal for prior protected EEO activity under the ADEA when:
1. On May 23, 2017, Counsel 1 who represents the Agency on Complaint 1, with settlement authority provided by the Agency Official 1, made her a settlement offer to resolve Complaints 1 and 2 that included a 10-year non-reapplication period to the Agency;2
2. On an unidentified date, Counsel 1 would not provide a copy of the sworn version of Complainant's declaration, which Complainant had packed away in storage four hours away, to Official 1 nor to the EEO Counselor/Director with the Agency's Equal Employment Opportunity Office that processed Complaint 1; and
3. On unidentified date(s) Counsel 1 refused to participate in scheduled telephonic conferences.
Complaint 1 started pending before the EEOC Hearings Unit of the New Orleans Field Office in December 2016, after Complainant requested a hearing. Counsel entered his appearance there on May 10, 2017.
The Agency dismissed issue 1 for failure to state a claim, reasoning in part that alternative dispute resolution talks are confidential. It dismissed issues 2 and 3 in part for failure to state a claim, reasoning in part that they do not involve a term, condition or privilege of employment. Complainant then filed the instant appeal.
ANALYSIS AND FINDINGS
Settlement negotiations, including any statements or proposals, are to be treated as confidential and privileged to facilitate a candid interchange to settle disputes informally. Thomason v. Department of the Army, EEOC Appeal No. 01A54061 (Jun. 22, 2006). Accordingly, we agree with the Agency's dismissal of issue 1.
As found by the Agency, issues 2 and 3 do not involve a term, condition or privilege of employment, and we find Complainant was not harmed by these actions. Accordingly, the age bases of issues 2 and 3 fail to state a claim. The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, Section B (Aug. 25, 2015) (available at eeoc.gov). We find that the actions in issues 2 and 3 would not reasonably likely deter EEO activity.
Allegations that allege dissatisfaction with the processing of a previously filed complaint are subject to dismissal. 29 C.F.R. � 1614.107(a)(8). Applying this regulation, we dismiss the entire complaint.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (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
February 6, 2018
__________________
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.
2 Complainant rejected the settlement offer.
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