[Redacted], Magnus K., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2020003760 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Magnus K.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2020003760 Agency No. FDA-ORAPA-036-06 DISMISSAL OF APPEAL On June 12, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the May 8, 2020 final decision of the Agency dismissing his claims as waived under a settlement agreement that the parties had signed on July 16, 2007, wherein Complainant withdrew his claims of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII). BACKGROUND Complainant had worked as a Chemist, GS-12, at an Agency food-testing facility in Bothell, Washington. Citing performance reasons, the Agency removed him from employment in November 2006. Complainant filed claims alleging the Agency’s termination of his employment was unlawful. On July 16, 2007, Complainant and the Agency entered a settlement agreement that provided, in relevant part, that Complainant withdraw, with prejudice, any and all cases that he had or could have had pending before EEOC or the Merit Systems Protection Board (MSPB). Thereafter, Complainant accused the Agency of non-compliance with the settlement agreement and petitioned the MSPB for enforcement. On November 21, 2007, the MSPB rendered an initial decision denying Complainant’s petition as untimely raised. Complainant appealed that initial finding but, on July 3, 2008, the MSPB denied Complainant’s request for review of their initial decision. Complainant appealed the MSPB decision to EEOC. 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 2020003760 However, in EEOC Appeal No. 0320080092 (Aug. 9, 2008), this Commission determined it lacked jurisdiction over the Complainant’s MSPB appeal in the context of a mixed case. Some years later, Complainant applied for another chemist vacancy with the Agency in College Park, Maryland. On January 20, 2011, the Agency notified Complainant that he had been found ineligible. According to Complainant, the Agency had breached the settlement agreement referenced above by failing to provide a favorable recommendation. On September 17, 2012, Complainant filed another petition for enforcement of the terms of the 2007 settlement agreement with MSPB. On November 5, 2012, an MSPB Administrative Judge (MSPB AJ) found no breach. Subsequently, on August 21, 2013, the MSPB denied Complainant’s petition for review. On September 18, 2013, Complainant again petitioned for EEOC review of the MSPB’s decision. The MSPB had not addressed matters within EEOC’s jurisdiction, so the Commission denied Complainant’s petition. EEOC Petition No. 0320140012 (March 4, 2014). However, apart from the breach claim, the Agency also considered the claim regarding the 2011 non-selection as a separate EEO complaint and conducted a formal investigation into its discrimination claims. Thereafter, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Commission’s AJ assigned to the case ordered the Agency to conduct a supplemental investigation because its report of investigation was insufficient and the Agency complied. However, Complainant was sanctioned for non-compliance during discovery and the Agency was directed to issue an immediate final decision. The Agency issued its final decision concluding no discrimination was established. Complainant appealed. In EEOC Appeal No. 0120151065 (April 5, 2017), request for reconsideration denied, EEOC Request No. 0520170333 (Aug. 8, 2017), we affirmed the AJ’s sanction remanding the non- selection complaint to the Agency for a final decision. We also determined that the evidence showed that Complainant had submitted an incomplete application for the position in question and, as a result, there was no evidence that his non-selection was discriminatory. On April 15, 2020, Complainant emailed the Agency’s EEO director and expressed his intentions to file a “mixed case” EEO complaint concerning his November 2006 removal by the Agency from his Chemist position. On May 8, 2020, the Agency responded with issuance of a final decision letter which determined that that Complainant had already waived filing any complaint on this matter in the July 2007 settlement agreement. The instant appeal followed. ANALYSIS AND FINDINGS Under EEOC Regulation 29 C.F.R. § 1614.504(a)(1), a settlement that was knowingly and voluntarily reached, at any stage of the EEO complaint process, shall be binding on both the employer and the employee. 3 2020003760 The Commission has consistently held that an EEO complaint cannot be reinstated after it has been withdrawn pursuant to a settlement agreement unless there is proof of coercion or deception. Allen v. Dep't of Def., EEOC Request No. 05940168 (May 25, 1995); Perry v. U.S. Postal Serv., EEOC Appeal No. 01A45685 (Oct. 17, 2005). The waiver provisions of this particular settlement agreement were clear and unambiguous. Complainant’s latest appellate submissions are in essence requests to file a new EEO complaint on his November 2006 removal from Agency employment and include allegations of harassment and disparate treatment relating to events that transpired before the November 2006 termination action or before the July 2007 settlement agreement. After thoroughly reviewing this record and numerous appellate contentions, we find that Complainant has knowingly and voluntarily executed the settlement agreement wherein he withdrew the wrongful termination claim in addition to any claims about management’s conduct before his employment was terminated. Complainant has failed to evidence that the Agency coerced or deceived him into signing the settlement agreement. We concur with the Agency, in that Complainant knowingly and voluntarily withdrew the claims now raised in the present appeal. Accordingly, the Agency properly ceased further processing of all pre-settlement claims. Complainant is precluded from attempting to re-litigate this matter. CONCLUSION Therefore, Complainant’s appeal is hereby DISMISSED. 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 9 § VII.B (Aug. 5, 2015). 4 2020003760 Complainant should submit his request for reconsideration, and any statement or brief in support of his request, via the EEOC Public Portal, at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. 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. 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). 29 C.F.R. § 1614.403(g). Either party’s request 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. 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. 5 2020003760 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 November 15, 2021 Date