0120151659
01-12-2016
Elbert H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elbert H.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151659
Agency No. 200J05062015100975
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 30, 2015, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Respiratory Therapist (GS-8) at the Agency's VA Ann Arbor Medical Center facility in Ann Arbor, Michigan.
In August 2011, Complainant sought EEO counseling from the Agency alleging he was subjected to unlawful retaliation when his employment was terminated effective August 12, 2011, prior to the end of his probationary period. Complainant alleged that he had previously raised allegations of sexual harassment by coworkers (viewing inappropriate material on an Agency computer). He asserts that in retaliation for doing so, he was transferred out the Medical Intensive Care Unit (MICU) and later terminated. The informal complaint was docketed as Agency No. 200J-0506-2011-104437. Complainant apparently also filed an appeal with the Merit Systems Protection Board (MSPB Docket No: CH- 0752-11- 419- I-1).
On October 18, 2011, Complainant and the Agency entered into a written settlement agreement. In the agreement, Complainant agreed to withdraw his informal EEO complaint (Agency No. 200J-0506-2011-104437), as well as his MSPB appeal. In exchange, the Agency agreed to rescind his August 12, 2011 termination, and allow Complainant to voluntarily resign from Agency employment. The agreement further provided that all references to the termination would be removed from Complainant's personnel records, and when future potential employers inquired about his employment, the Agency would indicate that he had voluntarily resigned.
On February 23, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on or about March 29, 2011, he observed his coworker, WA, viewing sexually inappropriate videos on a federal computer;
2. after inquiring with the Agency's EEO office about filing charges of sexual harassment against a coworker, he was moved from his unit;
3. effective August 12, 2011, he was terminated during his probationary period; and
4. in September 2014, upon the request of an Agency human resources official, he provided information regarding his complaints against the Agency, and the official never responded.
The Agency dismissed Claims 1 through 3, for failure to state a claim under 29 C.F.R. � 1614.107(a)(1), contending that Complainant already entered into a settlement agreement with the Agency on the same claims in October 2011. The Agency dismissed Claim 4 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 1 through 3
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. In addition, once a complainant has withdrawn an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a subsequent formal complaint on the same issue. See Allen v. Dep't of Def, EEOC Request No. 05940168 (May 25, 1995).
Complainant already raised Claims 1, 2, and 3 in a prior EEO complaint (Agency No. 200J-0506-2011104437), which he voluntarily withdrew as a condition of the settlement agreement he entered into with the Agency in October 2011. There is no indication of coercion. Therefore, we affirm the Agency's decision to dismiss these claims in Complainant's current EEO complaint (200J-0506-2015-100975).
However, in a letter to the Agency's EEO office dated March 21, 2015, Complainant alleged that the Agency was in breach of the October 2011 settlement agreement. Essentially, Complainant claimed that he had been precluded from getting other employment because his personnel records from the Agency indicated that he had been terminated, which violated that explicit language of the settlement agreement. Complainant referenced a May 16, 2012 email he received from the Agency Ann Arbor human resources office confirming that his records still showed that he was terminated. He also indicated that he received an August 2, 2012 letter from the Agency's EEO office accepting his claim of breach of the settlement agreement. He concedes that later, his personnel records were corrected due to "the intervention of the Office of Resolution Management [Agency EEO office]" after his breach claim. Thus, it appears that Complainant's breach claim was resolved after he raised it in May 2012. The Agency, in its current final decision, has represented that Complainant withdrew his breach claim on August 20, 2012, because the matter had been resolved. Complainant does not dispute this representation on appeal. In conclusion, claims 1 through 3 are settled and we will not examine them further.
Claim 4
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his or her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission.
The record discloses that the alleged discriminatory event took place in September 2014, but Complainant did not initiate contact with an EEO counselor until December 2, 2014, which is over forty-five (45) days later. Complainant has engaged in the EEO process before and is aware of the time limitation. He knew that the alleged discriminatory event or act occurred, and did not provide any evidence that circumstances beyond his control or other reasons kept him from initiating timely contact with the EEO Counselor.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, P.O. Box 77960, Washington, DC 20013. 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 (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.
Carlton M. Hadden, Director
Office of Federal Operations
January 12, 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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