0120092566
08-28-2009
Mattie Kelley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Mattie Kelley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092566
Hearing No. 520-2008-00378X
Agency No. 200H-0620-2007103756
DECISION
On May 26, 2009, complainant filed an appeal from the agency's final
order, dated May 18, 2009, concerning her equal employment opportunity
(EEO) complaint alleging 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 appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's decision.
Believing that she was subjected to racial harassment, complainant
filed a formal complaint regarding harassment, time and attendance,
schedule changes, working conditions and promotion. At the conclusion
of the investigation, complainant was provided with a copy of the report
of investigation and notice of her right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
However, on April 27, 2009, the AJ issued a decision dismissing the
complaint on the grounds that the matter was resolved by a February 10,
2009 settlement agreement.
The AJ was not persuaded by complainant's arguments, namely: (1) that
the agreement only settled one claim, so the hearing should proceed with
respect to the remainder of the complaint and, (2) that the agreement
should be voided because the agency breached the agreement. Instead the
AJ found that the settlement language was clear, and resolved the EEO
complaint at issue. Complainant was advised that if she believed the
agreement had been breached, that she follow the procedures set forth
On appeal, complainant's representative argues that the AJ "did not
consider the complainant's version of the settlement agreement but decided
by the face value [of the] document." In support of his contention,
the representative includes a copy of a February 24, 2009 letter he
wrote to the AJ stating that the agreement only concerned "poor working
conditions", claim A(4). In the letter he argued that the remaining
portions of claim A, along with claims B, C, D, and E should proceed to
a hearing.
In response, the agency argues that the AJ properly dismissed the matter.
According to the agency, "the settlement agreement could not be clearer
with respect to the dissolution of all matters raised prior to execution
of the agreement." Further, the agency contends that the February 24,
2009 letter should not be considered. The agency reiterates that the
complainant was represented when she executed the agreement, and if she
did not agree with the terms she should not have entered the settlement.
Based on a review of the record, the Commission finds that the AJ properly
dismissed the matter. The record reflects that the instant complaint is
the subject of the February 10, 2009 settlement agreement. Although the
agreement does not specifically cite the EEO case, it does broadly stated
that "both parties waive all rights to further administrative processing
and all rights to, but not limited to EEO, administrative grievances,
unfair labor practice[s], civil action[s], and all other EEO action in
connection with this complaint of dispute/conflict and all other causes
of action arising before execution of this agreement." Consequently, we
find that complainant is bound by the terms, which ceases the processing
of the EEO complaint at issue.
Accordingly, the agency's final action, dismissing the instant complaint
was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 28, 2009
__________________
Date
2
0120092566
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092566