0120083876
02-04-2009
Patricia A. McCornell-Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia A. McCornell-Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083876
Agency No. 4F-900-0104-08
DECISION
Complainant filed a timely appeal with this Commission from the
agency's final order dated August 21, 2008, implementing an EEOC
Administrative Judge's decision dismissing her 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., the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant filed a formal EEO complaint on March 5, 2008. Therein,
complainant alleged that she was subjected to discrimination on the
bases of race, sex, religion, color, disability, age and in reprisal
for prior protected EEO activity.
By letter dated April 8, 2008, the agency accepted complainant's complaint
for investigation and determined that it was comprised of the following
claim:
1. On January 14, 2008, complainant's hours were reduced to 2.20 hours
per scheduled workday.
By letter dated June 19, 2008, the agency accepted the following amendment
to the instant complaint: (2) On February 29, 2008, complainant was forced
to retire. However, the agency dismissed claim (2) on the grounds of
untimely EEO Counselor contact.1
Upon completion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ).
On July 22, 2008, the agency filed a Motion to Dismiss complainant's
complaint for failure to state a claim. Specifically, the agency stated
that complainant had waived her rights to pursue an EEO complaint
for incidents arising before the execution of a February 11, 2008
settlement agreement that was executed in another case (EEOC Hearing
No. 480-2007-00384X/ Agency No. 1F-900-0290-06). On August 14, 2008,
the AJ granted the agency's motion and dismissed the case. On August 21,
2008, the agency adopted the Administrative Judge's decision to dismiss
the complaint.
On appeal, complainant asserts that the claims raised in the instant
complaint are different than the claims that were settled as part of
the February 11, 2008 settlement agreement.
We find that the AJ properly dismissed complainant's complaint finding
that these matters were settled as part of the February 11, 2008
settlement agreement. The record contains a copy of the February 11,
2008 settlement agreement. Provision (1) provides:
After full and open discussion, Complainant hereby releases and forever
discharges [the agency], its past and present respective officers, agents,
and employees, from any and all claims, demands, suits, rights, damages,
union grievances, charges, administrative remedies (including but not
limited to Merit System Protection Board or Equal Employment Opportunity
Commission filings), and causes of action of any and every kind, nature,
and character, known and unknown, which Complainant may now have or has
ever had against Postal Service, or any of its officers, agents, and
employees, which arose in whole or in part from complainant's employment
relationship with [the agency], and which are based upon incident,
occurrences, or actions taking place on or prior to the execution of
this Agreement ("Claims"). Nothing in this paragraph shall pertain in any
manner to Complainant's right to file claims for OWCP and/or unemployment
benefits. (Emphasis added).
Provision (4) provides, in relevant part,:
The Parties expressly acknowledge that this Agreement is intended to
effect, without limitation, a full and final release of all Claims,
known or unknown, undisclosed or unanticipated, which may have arisen,
or may arise from Complainant's employment relationship with the Postal
Service on or prior to the date of this Agreement. (Emphasis added).
A review of the record reflects that claim (1) occurred prior to the
execution of the February 2008 settlement agreement. Thus, we find that
the AJ properly dismissed complainant's complaint.
Accordingly, we AFFIRM the agency's final order implementing the AJ's
dismissal of 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, D.C. 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
February 4, 2009
Date
1 On appeal, complainant does not expressly contest the agency's dismissal
of claim (2), thus we decline to address it herein.
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0120083876
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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