[Redacted], Cassey B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 14, 2022

Appeal No. 2022001754 (E.E.O.C. Mar. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eryn O,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020005095 Agency No. 2003-0660-2019104440 DECISION On July 6, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated June 10, 2020, finding that it breached the terms of the settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this equal employment opportunity case, Complainant was employed by the Agency as an Advanced Medical Support Assistant, GS-0679-06 at the Health Administrative Service, Veterans Affairs Medical Center in Salt Lake City, Utah. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency equal employment opportunity (EEO) Counselor to initiate the EEO complaint process. On September 18, 2019, prior to filing a formal EEO complaint, Complainant and the Agency entered into a settlement agreement to resolve this informal EEO complaint. The settlement agreement provided, in pertinent part, that the Agency would do the following for Complainant: 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. 2020005095 2 Agency Obligations: a. Restore… 1.15… [hours] of Absent Without Leave (AWOL) received on May 6, 2019 to… 1.15… [hours] of annual leave (AL) within… 120… calendar days from the date of this signed settlement agreement. b. Restore… 1… [hour] of… AWOL… received on May 7, 2019 to… 1… [hour] of… AL within… 120… calendar days from the date of this signed settlement agreement. c. Restore… 1.15… [hours] of… AWOL… received on May 14, 2019 to… 1.15… [hours]… of AL within… 120 calendar days from the date of this sign settlement agreement. d. Restore… 7… [hours] of… AWOL… received on July 2, 2019 to… 7 [hours] of… AL within… 120… calendar days from the date of this signed settlement agreement. e. Restore… 8… [hours] of… AWOL… received on July 3, 2019 to… 8… [hours] of… AL… within… 120… calendar days from the date of this signed settlement agreement. f. Remove thirty minutes… of… AWOL… received on July 5, 2019 to… 8… [hours] of… AL… within… 120… calendar days from the date of this signed settlement agreement. g. Remove Letter of Expectation dated February 8, 2019 from employees electronic official personnel folder (eOPF) or record system contained by the agency within ten calendar days from the date of this signed settlement agreement On or about May 1, 2020, the Agency received Complainant’s written allegations of breach. She alleged the Agency breached all the above enumerated obligations. In its June 20, 2020 FAD the Agency’s EEO function concluded Agency management breached all the above obligations. It advised Complainant that she may elect for specific performance of the settlement agreement. It advised that in the alternative, she may elect to have her EEO case reinstated from the point processing ceased without being required to return any benefits she received under the settlement agreement, albeit if she prevailed on her underlying case, any award would be offset by the benefits she retained. The Agency advised that irrespective of her election, Agency management would reissue its proposed removal against her dated March 19, 2020, which breached the settlement agreement by relying on the Letter of Expectation as part of her prior discipline, and delete this reference. But it advised Complainant that even after it did this, the Agency had no expectation this would disturb the subsequent decision to remove her (on April 3, 2020005095 3 2020, effective April 8, 2020).2 The FAD indicated it was accompanied by an election form. The record does not reflect what Complainant elected to do. The instant appeal followed. On appeal, Complainant argues that even though the Agency determined it breached the settlement agreement, the FAD did not rescind her removal. ANALYSIS The Agency found that it breached the settlement agreement. It gave Complainant the right to elect between specific performance thereof or reinstatement of her underlying EEO case. The Agency advised Complainant that regardless of her election, term 2(g) of the settlement agreement would be implemented by her March 19, 2020 proposed removal being reissued to expunge its reference to her Letter of Expectation dated February 8, 2019. Complainant appealed because in the FAD the Agency advised her that even with the implementation of term 2(g), the Agency had no expectation this would disturb the subsequent decision to remove her on April 3, 2020, effective April 8, 2020. Complainant argues, by implication, that specific performance of the settlement agreement would include rescinding her removal, effective April 8, 2020. We find that this argument is too speculative to warrant an order by us for the Agency to do this.3 2 On April 11, 2020, Complainant appealed her removal to the Merit Systems Protection Board (MSPB). On July 16, 2020, the MSPB issued an initial decision dismissing Complainant’s appeal with prejudice because she knowingly, voluntarily, and unequivocally withdrew her appeal. 3 We take administrative notice of the following. On or about April 16, 2020, Complainant amended an EEO complaint in another case (Agency no. 2003-0660-2020100279) to add the allegation that she was discriminated against when on April 3, 2020, the Agency decided to remove her effective April 8, 2020. The Agency accepted the amendment for investigation and investigated the entire complaint. Subsequently, the Agency issued a final decision on November 4, 2020, dismissing the removal claim. Therein, the Agency represented that after completing the investigation of complaint 2003-0660-2020100279, it notified Complainant both of her right to request a hearing before a Commission Administrative Judge (AJ) on the non-mixed portion thereof (everything but the removal), and that she would separately receive a final decision on the mixed portion of her complaint (removal). The final decision dismissed Complainant’s removal claim under 29 C.F.R. §1614.107(a)(4) because she made an informed election to appeal her removal to the MSPB before amending her EEO complaint, and the election was not negated by her withdrawing her MSPB appeal. The final decision included appeal rights to the EEOC’s Office of Federal Operations (OFO). As of December 9, 2020, OFO has not acknowledged any appeal. Meanwhile, in October 2020, Complainant requested a hearing before a Commission AJ on complaint 2003-0660-2020100279. The Commission assigned the hearing request docket no. 540- 2021-00049X. As of December 9, 2020, the hearing request is pending. 2020005095 4 Accordingly, the FAD is AFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020005095 5 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 December 10, 2020 Date