[Redacted], Elsa A., 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2020004547 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elsa A.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020004547 Agency Nos. ARBRAGG13AUG02631 and ARBRAGG15JAN00128 DISMISSAL On August 12, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) regarding complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq, and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Complainant worked as an Educational Aide at the Cook Child Development Center (Cook CDC) at the Agency facility in Fort Bragg, North Carolina (Fort Bragg). On August 29, 2013, Complainant filed a formal equal employment opportunity (EEO) complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), disability (Anxiety, Depression, and Carpel Tunnel Syndrome), age (55), and reprisal for prior protected EEO activity (instant matter) when: 1. in 2013, Fort Bragg management denied Complainant light duty and placed her on sick leave although she did not have accrued leave, and 2. in 2013, management changed Complainant’s schedule without proper notice and threatened to reassign her if she did not accept the schedule change. 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. 2020004547 2 The Agency docketed the complaint as Agency No. ARBRAGG13AUG02631. On January 23, 2014, Complainant and the Agency entered into a settlement agreement to resolve ARBRAGG13AUG0263. The Agency agreed to provide one-on-one Management and Supervisory Skills training to the alleged responsible management official and EEO and Stress Management training to all Cook CDC personnel. Complainant agreed to withdraw ARBRAGG13AUG02631. Effective September 7, 2014, the Agency removed Complainant from employment, citing “Failure to observe written regulations, orders, rules or procedures.” On February 3, 2015, Complainant filed a formal EEO complaint alleging discrimination based on race, age, and reprisal regarding her removal from employment. The Agency identified that matter as Agency No. ARBRAGG15JAN00128. After an extensive procedural history, including a hearing before an EEOC Administrative Judge (AJ), the Agency issued a final decision implementing the assigned AJ’s finding of no discrimination. Complainant filed an appeal with this Commission, which was docketed as EEOC Appeal No. 0120181331. On June 21, 2018, for Appeal No. 0120181331, EEOC affirmed the Agency’s final order. In 2014, Complainant filed a union grievance regarding her September 7, 2014 removal (# AFGE- FB-MVP-140622, UG) and, to resolve it, in 2015, the Agency and incumbent union entered into a settlement agreement. The agreement pertained to Complainant’s pending matters, including her removal from employment.2 On August 12, 2020, Complainant filed the instant appeal alleging improper denial of reasonable accommodation, constructive discharge on September 7, 2014, and interference with unemployment benefits due to removal reason. Further, Complainant alleged the Agency consistently negotiated in bad faith and that she received unfair representation from the union. In opposition, the Agency requested dismissal of this appeal, stating that Complainant is not alleging breach of a settlement agreement hence there is no corresponding final agency decision and the majority of her appellate submissions pertain to the EEO complaints of Complainant’s non- attorney representative. Upon review, we agree with the Agency and find that Complainant's appeal must be dismissed. Complainant is attempting to file an appeal on matters that have been addressed previously by the Commission (i.e., Elsa A. v. Dep’t of the Army, EEOC Appeal No. 0120181331 (June 21, 2018)) or through a negotiated settlement agreement with the Agency (January 23, 2014 settlement agreement and 2015 union agreement), and without alleging breach or doing so consistent with 29 C.F.R. § 1614.504. If Complainant is attempting to allege breach of a settlement agreement, she must do so within the breach provisions of the settlement agreement and EEOC Regulation 29 C.F.R. § 1614.504, which allows the Agency the opportunity to resolve and/or issue a breach determination. 2 Per the 2015 agreement, Complainant’s removal effective date was changed to October 4, 2015 and the removal reason was changed to “inability to perform due to medical.” 2020004547 3 We must note, even if the Agency considers Complainant’s appeal date as the date she alleged noncompliance, her breach allegation would probably still be untimely. See 29 C.F.R. § 1614.504(a). Based on the above, we dismiss the instant appeal. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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, a 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. 2020004547 4 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). 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 January 22, 2021 Date