0120182338
09-13-2018
Inge C.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement (ICE)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Inge C.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement (ICE)),
Agency.
Appeal No. 0120182338
Agency No. HS-ICE-02169-2017
DECISION
On June 26, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 22, 2018, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Financial Program Specialist, GS-0501-09 at ICE, Chief Financial Officer, Office of Financial Management, Financial Reporting & Accountability in Fort Snelling, Hennepin County, Minnesota, and as of September 30, 2016, a retiree.
On October 10, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected her to discrimination and harassment based on her sex (female) and age (62 when she retired), disability and reprisal for prior EEO activity when from 2009 to the present:
1. On unspecified dates, her communications (telephone calls, laptop, United States Postal Service and FedEx mail, internet and website she visits) were hacked and controlled by ICE.
2. On unspecified dates and continuing, ICE used invasive, painful, and loud "optogenetic" and "sonogenetic" implants and sonic attacks that caused her headaches and placed a tracker on her car that caused her engine to stall on a highway.
3. On unspecified dates, her mail was stolen.
4. On unspecified dates, ICE imposters posed as officials from the EEOC including its Officer of the Day; the 8th District Court of Appeals; the Merit System Protection Board (MSBP); and other agencies; stole documents she submitted to the EEOC; and twice issued fraudulent decisions based on fiction.
5. On unspecified dates, ICE used gang-stalking terrorism against her to cover up their fraud and abuse of authority with the EEO and EEOC programs.
6. On unspecified dates, ICE altered her EEO documents, told her she failed to state a claim, and created and sanitized documents by removing all discrimination and retaliation from her complaints.
7. On unspecified dates, ICE violated her privacy and had keys made to her home to place "through-wall" and other electronic equipment in her home.
8. On unspecified dates, ICE got a Foreign Intelligence Surveillance Act warrant making false claims to violate her.
9. On September 16, 2015, she requested that ICE and the U.S. District Court rescind the Stipulation for Compromise Settlement agreement she was bullied into entering on September 15, 2015. The agreement resolved and dismissed her previously filed EEO complaints and the civil lawsuit she filed on November 25, 2014, Case No. 0:14-cv-04853.2 However, both ICE and the U.S. District Court failed to process her rescission request based on fraud and abuse of authority.
10. On October 1, 2016, she was forced to retire.
The Agency dismissed issues 1 through 8 for failure to state a claim. It reasoned they do not involve a change to a term, condition or privilege of her employment because Complainant retired on September 30, 2016, and she did not show how these claims are related to her former position. The Agency dismissed issue 9 because it is the basis of civil action 0:14-cv-04853 Complainant filed in the Federal District Court of Minnesota on November 25, 2014, and only the District Court has jurisdiction over matters involving the above settlement agreement. The Agency dismissed issue 10 because under 29 C.F.R. � 1614.107(a)(4) she elected the MSPB forum. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(3) requires the dismissal of an administrative complaint that that is the basis of a civil action decided by a United States District Court in which the complainant was a party. Our review of Complainant's referenced November 25, 2014, civil action complaint shows that her administrative harassment claim (illustrated by incidents 1 - 8) form the basis of the civil action complaint up into November 2014. The District Court dismissed Complainant's civil action, explicitly with prejudice, on October 9, 2015. Accordingly, to the extent issues 1 - 8 occurred before November 25, 2014, they are dismissed.
We take administrative notice of a document by the Courtroom Deputy/Judicial Assistant memorializing that in a civil action settlement conference on July 28, 2015, the parties reached a settlement, and the terms thereof were stated on the record (there is no written version thereof in the civil action litigation record). The above document indicates an audio of 12 minutes was taken.
The record contains a copy of an unsigned civil action settlement agreement for the above civil action. It was attached to an email by Complainant, and contains inserted typed commentary by her. Among other terms, the Agency agreed to pay Complainant $35,000. Complainant agreed to retire on or before October 1, 2016, and this was irrevocable. She further agreed that to release the Agency from all claims for any event occurring prior to the date of the settlement agreement, including alleged violations of Title VII, the Rehabilitation Act, and the ADEA. She agreed that when the settlement agreement was signed her counsel would execute and provide the Agency a stipulation for dismissal with prejudice, which the Agency would be filed in Court once she received her $35,000 payment and resigned. Under the settlement agreement, Complainant had seven calendar days after signature to revoke her acceptance thereof in in writing.
We take administrative notice that on October 6, 2016, the Agency filed the referenced stipulation in the United States District Court. Based on this stipulation, the Court dismissed the civil action with prejudice. Complainant filed an appeal with the United States Court of Appeals for the Eight Circuit. Among other things, she argued that she signed the settlement agreement under duress, and she timely rescinded it. The Court of Appeals dismissed the appeal for being untimely filed.
On appeal, Complainant and the Agency submitted an initial decision by the MSPB regarding her forced retirement (which was effective September 30, 2016). The MSPB dismissed the appeal for lack of jurisdiction based on the above settlement agreement. It recounted that Complainant signed the settlement agreement on September 14, 2015. Quoting therefrom, the MSPB recounted that it released the Agency from "any and all claims... arising out of... any event occurring prior to the date of this settlement agreement... including... any alleged violation of Title VII... the [ADEA], and the Rehabilitation Act...." In finding no jurisdiction, the MSPB found that Complainant relinquished any right to challenge her retirement or resignation as involuntary in the settlement agreement. The MSPB wrote that while Complainant contended she timely revoked the settlement agreement, she did not dispute that the District Court dismissed her case based on the settlement agreement.
While the record does not contain a signed and dated copy of the settlement agreement, we find by a preponderance of the evidence that the terms thereof are as recounted above. The record contains an unsigned and undated version thereof which Complainant attached to an email, and the reflected terms thereof are consistent with the description in the MSPB's initial decision and the parties' actions on the stipulation to dismiss the civil action with prejudice.
We find that under the terms of the settlement agreement, up to the date of the signing thereof, the events in the instant administrative complaint, and her retirement effective September 30, 2016, are resolved and closed.3 Because the District Court has jurisdiction over the settlement agreement, her contention that it should be rescinded must be directed to the District Court.
We note that Complainant alleged in her complaint that the Agency continued to harass her. For example, she contended that after she rescinded the civil action settlement agreement a scar appeared across her forehead from temple to temple, a reference to the Agency secretly implanting a device in her head (which she also indicated was implanted previously) that it uses to cause her extreme pain, burns in multiple places, and render her unconscious. Likewise, Complainant contended that after she filed her civil action, the Agency escalated its "gang stalking" program against her, a reference to the Agency funding a company "Gangstalking School" named IT Training Solutions, Ltd. in the United Kingdom to train Agency employees to take control of her vehicle no matter where she goes, tap her telephones, hack her computer, and the like. We find these allegations to be so inherently improbable that they fail to state a claim.
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
September 13, 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 We take administrative notice of the filings by the parties in this civil action litigation, and the Court's orders and decisions.
3 Because the MSPB denied jurisdiction over issue 10, it is unmixed.
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