01a42132
07-15-2004
Kenneth Tyler, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kenneth Tyler v. Department of Veterans Affairs
01A42132
July 15, 2004
.
Kenneth Tyler,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A42132
Agency No. 200J-0541-2003104644
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 14, 2004, dismissing his complaint of unlawful
employment discrimination alleging a violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal.
See 29 C.F.R. � 1614.405.
In his complaint, complainant claimed discrimination on the bases of sex
(male), religion (Baptist), age (over 40), and reprisal for prior EEO
activity when shortly after his execution of a settlement agreement
on August 8, 2003, the agency changed his service computation date
from 1971 to 1993, causing a reduction of his accrued leave balances,
and placing him in a different leave category.
The agency dismissed the complaint on the grounds that this same matter
was covered by a provision in the settlement agreement. Specifically, the
agency determined that the settlement agreement permitted complainant to
expend his leave balances prior to his projected July 31, 2004 retirement,
in particular providing that complainant could be on leave as of March
or April 2004, until his retirement, depending on whether his sick leave
balance would extend to his retirement date. On appeal, the agency
further noted complainant's record statement that the agency officials
present at the settlement conference knew his service computation date
was 1971, and found that complainant was also alleging that the settlement
agreement should be rescinded due to a "mutual mistake of material fact."
Therefore, finding that the complaint must be treated as a breach claim,
the agency referred the matter to its dispute resolution office for a
determination.
On appeal, in pertinent part, complainant avers that the agency changed
his service computation date as an act of reprisal, also arguing that
the involved personnel officials harbored animus against him based on
his age, sex, and religion. Complainant avers that he is harmed because
his leave balances are reduced, and he is now earning less sick leave
as a result of this change.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The following provision of the settlement agreement is at issue:
.....[Complainant] will work all or part of March and possibly a part
of April depending on whether his sick and annual leave time will extend
to July 31, 2004.
Review of the settlement agreement reveals that it is devoid of any
reference to complainant's service computation date, or the amount
of his leave balances. As such, we find that the matter raised in
the instant complaint is not addressed in the settlement agreement.
Furthermore, notwithstanding the agency's argument to the contrary, we
find that complainant does not appear to be claiming that the settlement
agreement should be nullified, due to mutual mistake, because he avers
that his service computation date was not at issue during the settlement
conference, but instead changed as an act of retaliation after execution.
We additionally find that complainant identifies an actionable harm in
that he claims that his leave balances were reduced by the changed service
computation date, and that he was placed in a lower leave category.
The agency disputes neither of these contentions.
Accordingly, for the reasons set forth above, we find that the instant
complaint must be viewed as a separate complaint and not a breach claim.
See 29 C.F.R. � 1614.504(c). We REVERSE the agency's dismissal of the
instant complaint, and we REMAND this matter to the agency for further
processing as set forth in the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 15, 2004
__________________
Date