0120152041
02-03-2016
Margarito D.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Margarito D.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 0120152041
Agency No. NGAE-15-OGC10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 24, 2015, dismissing his complaint 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
Complainant, a former Lead Geospatial Intelligence Analyst at the Agency's Geospatial Intelligence Agency (NGA) in Springfield, Virginia, filed the instant formal complaint on February 2, 2015. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race, age, and in reprisal for prior EEO activity when:
1. on January 2, 2015, due to in-depth research he learned that the Associate General Counsel and Supervisory Human Resources Specialist intentionally did not inform him that he was entitled, by statute, to retire according to a discontinued retirement (DSR) and that the benefits of retiring by DSR offered him an opportunity to return to federal service within 5 years, placement assistance, and other benefits that would have been more beneficial to him than retiring under a Voluntary Early Retirement Authority (VERA)/Voluntary Separation Incentive Pay (VSIP);
2. on May 9, 2012, the Associate General Counsel stated during a mediation that the Agency was not going to give Complainant a DSR after he stated in a telephonic meeting with an EEOC Administrative Judge that the Agency could offer Complainant a DSR; and
3. the Agency did not do as required according to the February 5, 2015 letter he received from the Office of Personnel Management in reference to his request regarding conversion to DSR. Complainant alleged that he had no way of knowing what the Agency was required to do, by statute, at least 30-40 days prior to the effective date of his proposed separation from service. Complainant further alleged that he believed this fraudulent act, on the part of the Agency, was designed to force him into waiving his EEO claims.2
The record reflects that on June 1, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter that was pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
1. Agency Consideration to Complainant
NGA promises and agrees to do the following:
(A) NGA shall approve Complainant for a Voluntary Early Retirement Authority ("VERA").
(B) NGA shall approve Complainant for a Voluntary Separation Incentive Pay ("VSIP").
(C) NGA shall provide an official letter on NGA letterhead to Complainant attesting to Complainant's performance of duties.
(D) NGA shall provide an official letter on NGA letterhead to Complainant identifying Complainant's inclusive dates of employment at NGA and its predecessor agencies, his last official job title, and his ending salary.
(E) NGA shall inform Complainant's branch members in SG02 that Complainant accepted a "VERA/VSIP" in an email. NGA will provide Complainant a copy of this email.
(F) NGS shall accomplish A-B above as soon as practical, but not later than 30 days after the date that this agreement is effective.
2. Complainant Consideration to the Agency
Complainant promises and agrees to the following:
(A) Complain[ant] shall cooperate to the extent that is required by NGA/HD to process his "VERA"/"VSIP."
(B) Complainant understands and agrees that this Settlement Agreement resolves and all claims of any nature that he has brought, or may have against the Agency (including its employees, officers, agents and subrogees) with respect to any actions occurring prior to the date of this Agreement, whether currently known or unknown, including but not limited to the following EEO and EEOC complaints, EEOC OFO appeals and MSPB appeals, and litigation in any forum, whether state or federal: [cited complaints and appeals].
(C) Complainant agrees not to file any new claim, grievance, complaint or lawsuit of any type, in any forum, under any federal or state statute or regulation, against the Agency, its employees, agents or subrogees arising from the issues raised in any of his previous complaints, OFO appeals, federal court litigation, OSC complaints, and MSPB appeals. It is the express intent of both parties to end all litigation that has been brought by Complainant, or could have been brought by Complainant at the time of this agreement. Complainant further agrees that the submission of this agreement to the EEOC and MSPB will constitute a request for closure and dismissal with prejudice of all litigation between the parties, including but not limited to, the activity identified in section 2(B) of this agreement.
The record further reflects that on December 10, 2012, Complainant filed a formal complaint alleging that the Agency was in breach of the June 1, 2012 settlement agreement when he received an overpayment letter from the Defense Finance and Accounting Service (DFAS). Complainant, on appeal, requested that the Commission "view the DFAS letter as it was intended to be, which is a direct threat and intentional attempt by [Assistant General Counsel], NGA, and the DFAS to continue to ruin Appellant's credit for years to come and to harm his chances of reapplying for his clearance and future employment by causing further harm to his credit standing..." Complainant alleged that his debt to DFAS should have been resolved by the settlement agreement. However, the terms of the agreement do not specify that the Agency would cancel Complainant's debt to DFAS. The Commission affirmed the Agency's finding of no breach of the June 1, 2012 settlement agreement. Webster v. Department of Defense (NGA), EEOC Appeal No. 0120131177 (July 19, 2013).
On April 24, 2015, the Agency issued a final decision dismissing the instant formal complaint contending that these claims raised matters barred by the settlement agreement of June 1, 2012, which is the subject of the instant appeal.
Complainant, on appeal, argues that the Supervisory Human Resources Specialist "colluded with [Associate General Counsel] to keep him 'in the dark,' uninformed as to the benefits that he was entitled to, by statute, to later force Appellant into a waiver of his EEO claims, dated 01 June 2012. But the agency failed to follow the regulations as stated in OPM's 05 February 2015 response...the agency used fraud and deception to avoid fulfilling this statutory requirement, and to take away Appellant's employment for engaging in protected activity and in doing so, has discrimination against Appellant according to his race (Black American), age ([age]) and reprisal (all prior EEO activity from approximately January of 1997 to date) [emphasis in its original]."
The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.504(a), in the event of a settlement breach, a complainant may request that the agency reinstate the underlying complaint for processing. A complainant may not, however, file a new EEO complaint reasserting the same matters that he had previously settled with the agency. See 29 C.F.R. � 1614.107(a). Based on the evidence in the record, we find that the June 1, 2012 settlement agreement entered into between the parties bars Complainant's complaint. Therefore, we find that the Agency properly dismissed the instant formal complaint.
The Agency's final decision dismissing Complainant's formal complaint for the reasons stated herein is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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
February 3, 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.
2 The record reflects that race as a basis and claim 3 were later amended to the instant formal complaint.
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