0120092799
11-19-2009
Nathaniel C. Harris, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Nathaniel C. Harris,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092799
Agency No. 200H06322006100079
DECISION
Complainant filed a timely appeal with this Commission from the agency's final order dated April 24, 2009, implementing an EEOC Administrative Judge's (AJ's) decision dismissing complainant's 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On October 11, 2005, complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. In his formal complaint, complainant alleged that he was subjected to discrimination on the bases of race (black), sex (male), disability (torn ligament), and in reprisal for prior protected EEO activity.
The agency accepted complainant's complaint for investigation and complainant subsequently requested a hearing before an EEOC AJ.1
At the hearing, the AJ framed complainant's claims in the following fashion:
1. Complainant was indefinitely suspended beginning in September/October 2005 through October 2008;
2. In September 2005, complainant requested additional computer training for a Lead Register Nurse (RN),
3. In September/October 2005, complainant observed a new nurse receiving computer training whereas complainant was told he would receive the training later;
4. On or about September 13, 2005, complainant was not selected for the position of Admissions Nurse; and
5. In September 2005, complainant was denied a reasonable accommodation in the form of a transfer to an RN position in the psychiatric department.
At the "hearing" the AJ did not take witness testimony on the merits of complainant's claims; rather, the AJ and the parties discussed the agency's motion to dismiss/motion for summary judgment. The AJ granted the agency's motion. Specifically, the AJ stated in his decision that "the operating effect of the written settlement agreement executed by the complainant on February 6, 200[6], was rather straightforward notwithstanding complainant's personal beliefs which were formed at the time as a result of advice provided by complainant's union representative."2
The agency's final order implemented the decision of the AJ.
On appeal, complainant asserts that he believed that the February 2006 settlement agreement did not encompass the issue of his indefinite suspension in its entirety.3
The record contains a copy of a February 6, 2006 grievance settlement agreement signed by complainant. The grievance settlement agreement provides, in pertinent part, that:
2. Grievant, in consideration of the agency taking the action as described in paragraph 3.a. agrees to:
a. accept this action as a full and complete settlement of the step 2 grievance relating to pay issues identified about the issuance of an indefinite suspension action dated September 28, 2005
b. not file any subsequent claim, or cause of action with any administrative or judicial body, including but not limited to, the Office of Special Counsel, the Merit Systems Protection Board, the Federal Labor Relations Authority, the OWCP, the EEOC and any U.S. District Court with jurisdiction concerning the issues raised in or with the above referenced grievance.
Upon review of the record, we find that the February 2006 grievance settlement agreement covered complainant's indefinite suspension. We note that the settlement agreement makes reference to the indefinite suspension. In addition, underlying grievance paperwork also references complainant's indefinite suspension. Based on these circumstances, we find that the matter raised by complainant in claim (1) of his EEO complaint has been settled by the February 2006 grievance settlement agreement.
Accordingly, we AFFIRM the agency's final order implementing the AJ's decision to dismiss complainant's complaint.
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
November 19, 2009
Date
1 The AJ's decision sets forth a more detailed procedural history for this case.
2 At the "hearing", the AJ stated "a reasonable reading of [the settlement agreement] would indicate that at least as of the date that the document was executed, which would have been February 2006, all these other allegations of illegal discrimination occurred back in September 2005...my reasonable reading of this is that any and all claims that were raised prior to the settlement agreement at the very least were covered by this settlement agreement." Hearing Transcript at 45-46.
3 Complainant, on appeal, does not expressly contest the remainder of his claims (claims 2-5); thus, we decline to further address them herein.
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0120092799
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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