0120092583
08-28-2009
Elizabeth Aviles-Wynkoop, Complainant, v. Steven C. Preston, Administrator, Small Business Administration, Agency.
Elizabeth Aviles-Wynkoop,
Complainant,
v.
Steven C. Preston,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120092583
Hearing No. 570-2008-00763X
Agency No. 09-07-652
DECISION
On June 5, 2009, complainant filed an appeal from the agency's final
order, dated April 2, 2009, concerning her equal employment opportunity
(EEO) complaint alleging 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. and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the
following reasons, the Commission DISMISSES the instant appeal.
Believing that she was subjected to a hostile work environment based
on her national origin, color, disability and prior EEO activity,
complainant filed an EEO complaint. The agency framed the events
comprising the harassment complaint as follows:
(1) Complainant's second level supervisor denied her requests for annual
leave between August 17, and October 1, 2007;
(2) Complainant's second level supervisor physically assaulted complaint
on September 13, 2007;
(3) Complainant's first level supervisor refused to provide needed
assistance involving a possible contract bid protest;
(4) Complainant's second level supervisor insisted that complainant
provide her with a copy of a document that she did not have in her
possession; and,
(5) Complainant was not selected for the position of Lead Contract
Specialist, GS-1102-13 announced under vacancy announcement numbers
07H-164-DEU-L1 and 07H-164-MPP-L1.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. When the complainant did not object, the AJ assigned
to the case granted the agency's November 24, 2008 motion for a decision
without a hearing. On March 27, 2009, the AJ issued a decision finding
that complainant failed to prove that she was subjected to harassment
as alleged. Days later, on April 2, 2009, the agency issued a final
order adopting the AJ's finding of no discrimination. Complainant filed
the instant appeal.
On appeal, complainant plainly asserts that she was "never told case was
heard by EEOC and I'm appealing to have my case heard." Further, she
seeks to amend her case "not to include 30-day suspension and firing
but to show hostile work environment/retaliation discrimination up
to 1/7/09."
In response, the agency argues that the appeal should be dismissed on
two grounds. First, the agency contends that the parties entered into a
settlement agreement, resolving the EEO case at issue, on May 13, 2009.
Second, since the final order was issued on April 2, 2009, complainant's
appeal is untimely.
Based on a review of the record, the Commission agrees that the appeal
should be dismissed. The record contains a copy of a settlement agreement
executed on May 13, 20091, prior to the filing of the instant appeal,
which explicitly references the instant EEOC complaint. The agreement
repeatedly cites the instant EEO complaint, in both broad and specific
terms. The heading of the settlement includes both the EEOC number and
agency case number. The agreement language includes "all issues and
controversies relating to an arising from complainant's past employment
at the agency and in particular (including but not limited to) her race,
color and disability discrimination complaint . . . ." By the terms
of the agreement, complainant is prohibited from continuing with her
EEO complaint.
Accordingly, the instant appeal is hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 28, 2009
__________________
Date
1 The agreement provided complainant with the removal of a 30-day
suspension from her Official Personnel File, the replacement of her
removal with complainant's resignation, and $6,700.00.
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2
0120092583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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