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.