0120061099
02-16-2007
LuAnn Johnson, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
LuAnn Johnson,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal Nos. 0120055936
01200610991
Agency Nos. 4-02-4100
2005-19928-FAA-04
Hearing No. 210-2005-00235X
DECISION
Complainant filed timely appeals with this Commission from two final
decisions dated November 8, 2005 and November 18, 2005, dismissing her
formal complaints 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. The appeals are accepted pursuant to 29
C.F.R. � 1614.405. The Commission may, in its discretion, consolidate
two or more complaints of discrimination filed by the same complainant.
See 29 C.F.R. � 1614.606. Accordingly, the Commission exercises its
discretion to consolidate the above captioned cases.
Appeal No. 0120055936 - Agency No. 4-02-4100
In Agency No. 4-02-4100 (hereinafter referred to "Complaint 1"), the
record reflects that complainant was hired as an Administrative Assistant
at the agency's Office of the Regional Administrator, Great Lakes Regional
Office in Des Plaines, Illinois, subject to a one-year probationary
period. Complainant subsequently filed a formal complaint on May 9,
2002.2 Therein, complainant claimed that she was discriminated against
when she was terminated during her probationary period. In resolution
of this complaint, the parties entered into a settlement agreement on
January 3, 2003.
The January 3, 2003 settlement agreement provided, in pertinent part,
that:
3. The agency will cancel the removal action it took against complainant
and amend its personnel records to reflect a voluntary resignation,
effective March 31, 2002, in place of the removal action of that date.
All references to the removal action, including negative information
relating to this adverse action, will be removed from Complainant's
official personnel file.
8. The parties agree to fully cooperate with each other in order to
process all provisions of this agreement.
14. The Complainant agrees to maintain this settlement agreement in
confidence and to not disclose any of its terms. The agency agrees
that the terms of this settlement may be disclosed only to individuals
in an official capacity with a need to know in order to implement this
agreement.3
Following her separation from agency employment, complainant applied
for a job with the Department of Homeland Security (DHS). During the
application process, DHS conducted a security check into complainant's
background, and interviewed her former agency supervisor. Complainant
filed a Freedom of Information Act (FOIA) request to determine what was
said to DHS investigators by her former agency supervisor
By letter to the agency dated January 25, 2005, complainant claimed breach
of provisions 3, 8 and 14 of the January 3, 2003 settlement agreement,
and requested reinstatement of her underlying complaint, filed on May 9,
2002. Specifically, complainant claimed that when she received a copy
of her pre-employment background investigation through a FOIA request,
she discovered that her former agency supervisor disclosed improper
information to the investigator. Specifically, complainant claimed that
the former supervisor informed the investigator that complainant was
"terminated [from agency employment] before the expiration of her one
year probationary period." 4
On March 9, 2005, the agency issued a final decision finding breach of
the January 3, 2003 settlement agreement, and reinstated the settled
matter from the point processing ceased.
At the conclusion of the investigation of her reinstated complaint,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ).
Thereafter, the agency filed a Motion to Dismiss with the AJ. In its
motion, the agency argued that because complainant requested reinstatement
of the settled matter, she had to return the $10,000.00 lump sum payment
she received as part of the settlement agreement in order to return to
status quo ante.
On September 7, 2005, the AJ granted the agency's motion to dismiss
Complaint 1, without prejudice. The AJ determined that although
complainant's former supervisor's actions were "so egregious that, if
allowed to go unaddressed, they will provide such a chilling effect
to the EEO process that employees would become unwilling to enter
into settlement agreements, the Commission's longstanding approach
to handling breach cases [returning parties to the status quo ante],
cannot be ignored." The AJ determined that complainant had sixty days
to reimburse the agency the $10,000.00 lump sum payment she received as
part of the agreement in order to reinstate Complaint 1.
The agency implemented the AJ's decision in a final order dated November
8, 2005. It is that decision that is the subject of the instant appeal.
As a remedy for the agency's breach, complainant indicates that she
wishes that her underlying complaint (of May 9, 2002) be reinstated. The
Commission determines that this is an appropriate remedy. The Commission
finds, moreover, that the AJ improperly granted the agency's motion to
dismiss Complaint 1. Specifically, the AJ determined that complainant
has to return the $10,000.00 lump sum payment to the agency in order for
the agency to have an obligation to resume processing of Complaint 1.
However, we note in his decision, the AJ indicated that complainant was
claiming that she was discriminated against by the agency when she "was
terminated during her probationary period on the basis of age. (emphasis
added)"
Therefore, we find that when complainant pursued the EEO complaint
process that led to the instant settlement agreement, age was the
covered bases that was identified. The Commission therefore determines
that complainant's retention of any consideration that she may have
received is no impediment to the reinstatement of her claims under the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �
621 et seq. See Oubre v. Entergy Operations, Inc., 522 U.S. 422, 118
S. Ct. 838 (1998). Complainant is advised, however, that if she prevails
on her EEO complaint, any monetary award may be subject to offset by
the consideration already received from the agency. See Oubre, id.
Therefore, based upon the facts presented herein, complainant is entitled
to proceed with Complaint 1, recommencing the hearing process from the
point processing ceased when the AJ dismissed her complaint. Accordingly,
the agency's final order concerning Complaint 1 is VACATED and Complaint
1 is REMANDED to the agency for further processing in accordance with
the ORDER below.
Appeal No. 0120061099 - Agency No. 2005-19928-FAA-04
In Agency No. 2005-19928-FAA-04 (hereinafter referred to "Complaint 2"),
complainant claimed that she was subjected to discrimination on the
basis of reprisal for prior EEO activity when the agency breached the
terms of the January 25, 2005 settlement agreement.
In its November 18, 2005 final decision, the agency dismissed Complaint
2 pursuant to 29 C.F.R. � 1614.107(a)(1) on the grounds that the matters
raised therein addressed the same claims that were raised in a prior EEO
complaint (identified as Agency No. 4-02-4100, and discussed above).
Specifically, the agency found that complainant raised the same claim
already raised and adjudicated as a breach of a settlement agreement.
The agency stated that by letter dated January 25, 2002, complainant
claimed the agency breached the January 3, 2003 settlement agreement.
The agency stated that it issued a final decision on March 9, 2005,
finding breach of the settlement agreement, and reinstated the complaint
for further processing.
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.
In the instant case, we find that the matter in the instant case was
previously raised in a prior complaint identified by the agency in its
final decision. Therefore, the agency properly dismissed Complaint 2
on the grounds that it raises the same claim that was raised in a prior
EEO complaint.
Accordingly, the agency's decision to dismiss Complaint 2 on the grounds
that it addresses the same matter raised in a prior complaint was proper
and is AFFIRMED.
ORDER
The agency shall submit to the Hearings Unit of the Chicago District
Office the request for a hearing concerning Complaint 1 within fifteen
(15) calendar days of the date this decision becomes final. The agency
is directed to submit a copy of the complaint file (Complaint 1) to the
Hearings Unit of the Chicago District Office within fifteen (15) calendar
days of the date this decision becomes final. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit
of the Chicago District Office. Thereafter, the Administrative Judge
in the Chicago District Office shall issue a decision on Complaint 1 in
accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 16, 2007
__________________
Date
1 Due to a new data system, the two cases have been re-designated with
the above referenced appeal numbers.
2 The record does not contain a copy of complainant's May 9, 2002
complaint.
3 The settlement agreement also provides for complainant to be paid a
lump sum of $10,000.00.
4 The record reflects that, despite this alleged disclosure, complainant
was hired to work with DHS.
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0120061099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055936
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