Joseph P. Bailey, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionApr 7, 2000
01990406 (E.E.O.C. Apr. 7, 2000)

01990406

04-07-2000

Joseph P. Bailey, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Joseph P. Bailey v. Department of Veterans Affairs

01990406

April 7, 2000

Joseph P. Bailey, )

Complainant, )

)

v. ) Appeal No. 01990406

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On October 9, 1998, complainant filed a timely appeal with this Commission

from a final decision (FAD) by the agency dated September 8, 1998,

finding that it was in compliance with the terms of the December 27,

1994 settlement agreement into which the parties entered.<1> See 64

Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �

1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at

29 C.F.R. � 1614.405).

The settlement agreement provided, in pertinent part, that:

(1) The parties understand and freely and voluntarily agree on a

full and final settlement in the above-named appeal. The agency

will rescind the removal which would have been effective January 6,

1995, and will approve a voluntary early retirement effective January

5, 1995. The agency will also remove the reprimand dated August 12,

1994 and rescind the suspension from October 18, 1994 to October 20,

1994, with the [complainant] receiving authorized absence and salary

for those three days. The agency will also change the [complainant's]

performance rating for the period April 1, 1993, to March 31, 1994,

from fully successful to highly successful. The [complainant] withdraws

all pending discrimination complaints, grievances and appeals against

the agency. Both the agency and the [complainant] request that

this settlement agreement be entered into the record of the appeal.

The [complainant] withdraws his appeal of the original action.

By letter to the agency dated July 1, 1995, complainant alleged

that the settlement agreement entered into on December 27, 1994, was

unconscionable. Specifically, complainant claimed that the terms of the

agreement be declared null and void and he asked that he be reinstated

in the position of Associate Director Trainee, GS-6710-14.

In its September 8, 1998 FAD, the agency concluded that the settlement

agreement was valid and that complainant freely entered into the

agreement. In addition, the agency claimed that it complied with the

terms of the agreement.

On appeal, complainant states that his July 1, 1995 letter was a complaint

of unlawful and discriminatory discharge and not a breach of settlement

allegation. In addition, complainant states that one of the remedies

requested in his complaint was to void the December 27, 1994 settlement

agreement but he claims that the complaint concerned the events leading

up to the "forced" retirement on January 5, 1995.

In response to complainant's appeal, the agency noted that since the July

1, 1995 letter attacked the validity of the December 27, 1994 settlement

agreement, it was characterized as a breach complaint. The agency claimed

that since the disputed settlement agreement was entered into as a result

of complainant's Merit Systems Protection Board (MSPB) appeal, the MSPB

and not the EEOC should have addressed the validity of the agreement.

The record reveals that the December 27, 1994 settlement agreement

was entered into in settlement of complainant's MSPB case (MSPB Docket

Number AT-0752-95-0335-I-1). The record also shows that complainant's

MSPB case concerned his proposed removal on January 5, 1995.

In the present case, the Commission finds that complainant's complaint

should be dismissed under 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)).

Specifically, we find that complainant should have filed his

allegations of breach with the MSPB and not through the EEO process.

Since complainant's allegations pertain to the validity of an MSPB

settlement agreement, the matter is outside the purview of the EEO

process and is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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

19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S1199)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

April 7, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.