01a52052
06-20-2005
Denise Hill, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency.
Denise Hill v. Army Air Force Exchange Service
01A52052
6/20/05
.
Denise Hill,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Army & Air Force Exchange Service (AAFES),
Agency.
Appeal No. 01A52052
Agency No. 05.001
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 3, 2005, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of race (African-American) when, effective April 28, 2004,
she was suspended from her AAFES employment for14 days.
The record reveals that on April 13, 2004, complainant was issued a Notice
of Separation when, on March 25, 2004 while shopping on duty before
the store in which she worked, she took merchandise without properly
accounting for it. On April 27, 2004, the agency and complainant
settled the complaint. In exchange for the recision of the complaint,
the agency agreed that she would be issued a Notice of Suspension for
14 days instead of the Separation. Furthermore, complainant agreed that:
C. The Employee and Union agree not to file any grievances, complaints,
or Unfair Labor Practice Charges regarding the incident outlined in
A. above or may be currently pending. By doing so, the Employee and
the Union hereby waive all rights for further processing of this matter
through the negotiated grievance procedure, the EEO complaint process,
the Federal Labor Relations Authority, and/or litigation in State and
Federal Courts, or other forum.
On or about September 30, 2004, complainant filed the instant complaint
alleging discrimination when she learned that a co-worker was treated
more favorably than she was when the co-worker was accused of stealing.
The agency dismissed the complaint due to complainant's failure to make
timely contact with an EEO Counselor. Furthermore, the agency found
that complainant had waived any future claims on the matter through the
EEO process.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996).
Here, complainant agreed to withdraw her complaint and forgo future
litigation in exchange for a lesser charge. Had she wanted to pursue
the matter to a later appeal stage, she could have. Complainant does
not allege, nor does the record reveal, that the settlement agreement
was invalid for another reason. Accordingly, the agency's final decision
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
6/20/05
Date