0120181784
09-13-2018
Rafaela B,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rafaela B,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120181784
Agency No. ARIRWIN17NOV04062
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 5, 2018, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-12 Logistics Management Specialist at an Agency facility in Fort Irwin, California. On November 2, 2017, Complainant initiated EEO contact alleging that, as of October 5, 2017, the Agency subjected her to hostile work environment harassment based on reprisal for prior protected EEO activity (prior EEO complaints). Complainant alleged that the Agency unilaterally altered her position description as it was agreed to in a March 11, 2016 settlement agreement.2 Complainant stated that the Agency attempted to intimidate and coerce her into accepting supervisory duties to her GS-13 position provided under the settlement agreement, although she was a union officer and supervisory status would remove her from the bargaining unit. On December 12, 2017, Complainant filed a formal EEO complaint.
In a final decision, dated April 5, 2018, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. �� 1614.107(a)(1) & (a)(2). The Agency stated that Complainant's complaint raises the same matter that has been decided by the Commission, fails to state a claim, and was untimely raised with an EEO Counselor. The instant appeal from Complainant followed, in which she reiterated prior contentions of the Agency forcing her to accept a supervisory GS-13 position under the March 2016 settlement agreement. The Agency stated that Complainant wanted to receive GS-13 pay and benefits but remain under her GS-12 position description or a GS-13 position description she created with her supervisor.
ANALYSIS AND FINDINGS
We find that Complainant's complaint amounts to dissatisfaction with the execution of provision (3)(c) of the March 11, 2016 settlement agreement. We find that EEOC addressed this matter in Rafaela B. v. Dep't of the Army, EEOC Appeal No. 0120162503 (January 26, 2017) and with subsequent compliance monitoring which has ceased. The Commission also addressed the matter in the decision for Rafaela B. v. Dep't of the Army, EEOC Appeal No. 0120181085 (July 12, 2018). 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. The record shows that is the case here and the instant complaint should be dismissed.
CONCLUSION
We AFFIRM the final agency decision dismissing the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
September 13, 2018
__________________
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 On July 15, 2016, Complainant filed an appeal with this Commission, which EEOC docketed as Appeal No. 0120162503. Complainant alleged breach of a March 11, 2016 settlement agreement between her and the Agency. On January 26, 2017, for Appeal No. 0120162503, EEOC issued a decision modifying the final agency decision and remanding the matter to the Agency regarding agreement provision (3)(c) - promotion of Complainant to a GS-13 position. Specifically, the Commission stated, "the plain meaning of 'promote Complainant to a GS-13' requires her placement in a GS-13, which in turn, results in changes to her salary and position description." In Appeal No. 0120162503, EEOC ordered the Agency to notify Complainant that she could choose to return to "status quo" prior to the 2016 agreement and reinstate the underlying complaint (prompting return of any received benefits) or keep the settlement agreement in effect and modify the provision about a GS-13 position description, or completely delete said provision. The Commission initiated Compliance on the matter, and ceased monitoring on September 25, 2017.
On February 13, 2018, Complainant filed another appeal regarding noncompliance with paragraph (3)(c) of the settlement agreement, and her placement in a supervisory GS-13 position. EEOC docketed the matter as Appeal No. 0120181085. On July 12, 2018, EEOC affirmed the agency's final decision finding no breach.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120181784
4
0120181784