0120161947
10-28-2016
Lois G.,1 Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lois G.,1
Complainant,
v.
Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120161947
Agency No. 20080009R06
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated February 19, 2016, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Project Manager/ Environmental Engineer at the Agency's facility in Dallas, Texas.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO counselor to initiate the EEO complaint process. On December 8, 2009, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(5) The Agency has been fully committed to the principles of EEO in the workplace and adheres to the policy of ensuring equal employment opportunity, prohibiting unlawful discrimination, retaliation, or harassment in all its forms. Thus, there shall be no discrimination of any kind against the Complainant as a result of filing this complaint.
On December 7, 2015, Complainant filed an EEO complaint alleging she was being subjected to discrimination and unlawful retaliation when the Agency utilized its performance Appraisal and Recognition System against her, and on October 15, 2015, she was threatened with being fired. Complainant also alleged that these matters were a breach of provision (5) of the settlement agreement.
In a February 19, 2016 decision, solely addressing the breach claim, the Agency determined that provision (5) was unenforceable for lack of consideration on its part as it promised to do no more than it was legally obligated to do anyway. However, the Agency notified Complainant that it was processing her allegations as a separate EEO complaint, identified Agency Complaint No. 2016-0020-R06. The Agency indicated that it would issue a separate final decision on that complaint.
The instant appeal followed.
ANALYSIS
In the instant case, Complainant is alleging that she has been subjected to subsequent discriminatory and retaliatory acts following the execution of the settlement with the Agency. Complainant previously filed Appeal No. 0120114243 (February 21, 2012), which also alleged a breach of the same provision when Complainant received a letter of reprimand. That decision explained to Complainant that a claim of subsequent discrimination or retaliation in violation of a settlement agreement's anti-discrimination/retaliation clause is to be processed as a separate complaint, rather than as a breach of the settlement agreement. The same applies to the instant case. Complainant is alleging that subsequent acts of discrimination and reprisal violated the settlement agreement. We find that the Agency is correctly processing her claims as a separate complaint. Concerns relating to those claims should be addressed within that complaint.
Accordingly, the Agency's determination on the breach allegation is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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
October 28, 2016
__________________
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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