0120181888
07-26-2018
Genie S,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Genie S,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120181888
Agency No. ARFTHUA17AUG03055
DECISION
On May 16, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 10, 2018, dismissing her 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 was employed by the Agency as a Management Analyst, GS-0343-11 with the Agency's United States Army Network Command Headquarters, Force Management Division, Force Management Current Operations Branch in Fort Huachuca, Arizona.
Complainant filed an equal employment opportunity (EEO) complaint dated December 15, 2017. The Agency defined the complaint as alleging that it discriminated against Complainant based on her disability and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when on or about May 15 - June 19, 2017, it failed to provide her reasonable accommodation when it:
1. did not provide her with telework during her time out for her condition;
2. did not allow her continued use of leave for an established disability by putting her on absence without official leave (AWOL); and
3. did not accept adequate doctor notes for her reasonable accommodation request.
The Agency dismissed the complaint because on January 10, 2018, Complainant entered into an oral settlement agreement before a Merit Systems Protection Board (MSPB) Administrative Judge (AJ) closing her appeal and waiving all claims that were raised or could have been raised against the Agency as of the effective date of the agreement. The instant appeal followed.
Complainant contends that the referenced settlement agreement did not include any settlement of her EEO case. She contended below that she did not sign a universal settlement.
In opposition to the appeal, the Agency argues that Complainant's appeal should be denied.
On January 10, 2018, a MSPB AJ issued an initial decision reflecting the following. Complainant appealed her removal effective November 14, 2017, for medical inability to perform the functions of her position. She had a pending application for a disability annuity with the Office of Personnel Management (OPM). During a MSPB telephonic status conference, the parties entered into an oral settlement agreement which the AJ recorded resolving the disputed issues. The settlement agreement appears lawful and freely reached, and the parties acknowledged that they fully understood the terms of the agreement. The terms of the settlement agreement are as follows:
(1) as soon as possible but no later than 14 days after the effective date of this agreement the agency agrees that it will send to OPM the documentation of its action removing the appellant for medical inability and will otherwise facilitate providing information to OPM regarding the appellant's employment with the agency; (2) the appellant agrees to waive any and all claims that were raised or could have been raised against the agency as of the effective date of the agreement and that this is a global settlement of all such claims; (3) the parties agree that this appeal will be dismissed with prejudice to refiling as settled; (4) the effective date of this agreement is January 10, 2018; (5) the appellant enters into this agreement knowingly, willing and without coercion;.... and (7) the parties agree to enter this settlement into the Board's record [the recording] for enforcement purposes.
In opposition to Complainant's appeal, the Agency represents that the MSPB's initial decision became final on February 14, 2018. Complainant does not contest this.
ANALYSIS AND FINDINGS
In Doak v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01976709 (Jan. 19, 2000), the Commission dismissed a pending appeal that was before it after the Agency submitted a copy of an MSPB initial decision which described the terms of an oral settlement agreement wherein, according to the MSPB, the complainant agreed to withdraw all claims relating to her employment with the agency pending before the EEOC. The Commission recounted that the MSPB found that the parties understood the terms of the agreement, that it was lawful on its face, and that it appeared that the agreement had been freely and voluntarily entered into by the parties. The Commission dismissed the appeal because of the agreement and the MSPB's determination that it was valid.
Complainant contends that the settlement agreement did not include any settlement of her EEO case, and she did not sign a universal settlement. This is contrary to the wording of the agreement set out in the MSPB's initial decision. Applying Doak, 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
July 26, 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.
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