0120180115
03-06-2018
Edward W.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Edward W.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120180115
Agency No. DON 17-692330-2303
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 28, 2017, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Labor & Employee Relations Specialist, GS-201-12 at the Agency's Office of Civilian Human Resources facility in Philadelphia, Pennsylvania.
On June 12, 2017, Complainant filed a claim of whistleblower retaliation with the Office of Special Counsel (OSC). Specifically, Complainant alleged that he was unlawfully issued a Performance Improvement Plan (PIP) on May 23, 2017; he was denied a promotion to the GS-13 level on June 12, 2017; he was issued a letter of reprimand on May 25, 2017; and he requested a reasonable accommodation on May 25, 2017, but received no response.
While the complaint was pending before OSC, Complainant contacted an Agency EEO Counselor. On July 20, 2017, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On May 23, 2017, the Supervisor placed Complainant on a Performance Improvement Plan (PIP);
2. On May 25, 2017, the Supervisor issued Complainant a letter of Reprimand for "failure to follow directions."
3. On June 12, 2017, the Supervisor denied/delayed his within-grade wage increase and denied his promotion to a GS-13.
4. On July 20, 2017, the Supervisor denied his May 24, 2017 request for a reasonable accommodation. Complainant also asserted that the 56 days to respond to his request was an unreasonable delay.
On July 31, 2017, Complainant also filed an appeal with the Merit Systems Protection Board (MSPB) regarding the Supervisor's denial of Complainant's within-grade increase.
Complainant's MSPB appeal was resolved with a settlement agreement dated August 25, 2017. The agreement stated that it resolved Complainant's MSPB appeal, as well as the issues raised by Complainant in his filing with the OSC. The agreement also provided that the parties agreed that it settled all "related . . . incidents, disputes or potential disputes which occurred on or before the date of this agreement, which complainant raised or could have raised before the Equal Employment Opportunity Commission . . ." and other enumerated adjudicatory bodies.
As a result, the Agency dismissed Complainant's EEO complaint pursuant to 29 C.F.R.� 1614.107(a)(4) and 1614.107(a)(5). The Agency found that Complainant had raised the same issues in his EEO complaint as those raised before OSC and MSPB. The Agency indicated that the August 25, 2017 was a global settlement agreement that resolved the MSPB appeal as well as the matter before OSC. The Agency further held that in the MSPB settlement agreement Complainant agreed to waive claims on the same or "related matters" in the EEO complaint process. For this reason, the Agency dismissed the EEO complaint.
The instant appeal followed.
ANALYSIS AND FINDINGS
After careful consideration of the record, we find that the instant complaint is more appropriately dismissed pursuant to EEOC Regulation 29 C.F.R.� 1614.107(a)(1), which permits the dismissal of an EEO complaint where it states the same claims as those that have already been resolved by the Agency. The record establishes that Complainant and the Agency entered into a settlement agreement, dated August 25, 2017, that resolved issues then pending before the OSC and the MSPB.
In his EEO complaint, Complainant alleged that he was subjected to discrimination when he was placed on a PIP, issued a letter of Reprimand, had his within-grade increase and a promotion denied, and was denied a reasonable accommodation. Complainant's earlier claims with the OSC asserted the same events violated his rights to whistleblower protections. In addition, he also raised the denial of the within-grade increase with the MSPB. As a result, the parties reached a global settlement agreement on August 25, 2017, in which they agreed that these matters raised in the OSC complaint and MSPB appeal were fully resolved, and included "all related matters" that Complainant "raised or could have raised" in the EEO complaint process on or before the date the settlement agreement was signed.
We conclude that the August 25, 2017 MSPB/OSC settlement agreement, by its explicit language, also resolved the same issues raised in Complainant's EEO complaint. As such, the Agency properly dismissed the EEO complaint as resolved by the settlement agreement.
CONCLUSION
The Agency's final decision dismissing Complainant's formal complaint for the reasons stated herein 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
March 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
0120180115
4
0120180115