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

Equal Employment Opportunity Commission

Jan 12, 2021

Appeal No. 2020004312 (E.E.O.C. Jan. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Odilia M.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020004312 Agency No. ARBRAGG20APR01336 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 10, 2020, 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., 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. BACKGROUND In August 2010, Complainant began working at an Agency child development center on the Agency’s Fort Bragg, North Carolina base (Fort Bragg). On June 6, 2011, the Agency promoted Complainant to Supervisory Program Lead at its Wonderful World for Kids School Age Program at Fort Bragg. In January 2013, the Agency barred Complainant from Fort Bragg and, in March 2013, the Agency removed Complainant from employment. On April 30, 2020, Complainant initiated equal employment opportunity (EEO) contact alleging that the Agency subjected her to discrimination on the bases of race (African-American), national origin (African-American), disability (Post Traumatic Stress Disorder, Anxiety, Depression, Chronic Back and Shoulder Pain, and Migraines), age (51), and reprisal for prior protected EEO activity (prior EEO complaints) when the Agency negotiated in bad faith as to a January 6, 2012 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. 2020004312 2 settlement agreement and a June 6, 2016 global settlement agreement between it and Complainant. Complainant stated that the Agency never intended to honor a two-week transition between her and a peer Supervisory Program Lead at a specific child development center and used the provision to induce her agreement. On June 3, 2020, Complainant filed an EEO complaint alleging discrimination based on race, national origin, disability, age, and reprisal due to “AGENCY MISREPRESENATION IN SETTLEMENT.” Complainant alleged that the Agency discriminated against her, between 2011 and 2016, as to involuntary reassignment; disparate treatment regarding disciplinary actions and work location, duties, conditions, and schedule; barring her from the work facility; separating her from employment; improper investigation of her prior EEO complaints and dismissal of her complaints; and interference with her Office of Workers’ Compensation Programs (OWCP) claim. Complainant alleged that the Agency harassed her and denied her 2012 request for reasonable accommodation. In its July 10, 2020 final decision, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a). Specifically, the Agency stated that Complainant initiated EEO contact in an untimely manner, improperly alleged dissatisfaction with Agency processing of prior EEO complaints, launched a collateral attack on the OWCP forum, and addressed matters previously resolved by settlement agreement, another EEO complaint, or civil action.2 The instant appeal from Complainant followed. 2 Between March 17, 2013 and September 17, 2018, Complainant filed a series of civil actions in the United States District Court for the Eastern District of North Carolina alleging adverse actions by the Agency, including disparate treatment, denial of reasonable accommodation, barment from Fort Bragg, breach of settlement agreements, and termination from Agency employment. Further, our database shows that Complainant filed prior EEO complaints regarding adverse actions by the Agency and several of said complaints resulted in EEOC appeals. The Commission docketed EEOC Appeal No. 0120132513 in which Complainant alleged the Agency breached a January 6, 2012 settlement agreement when it failed to reassign her to another child development center on Fort Bragg. On December 6, 2013, in 0120132513, the Commission found no breach of the settlement agreement. The Commission docketed EEOC Appeal No. 0120133232, in which Complainant alleged the Agency discriminated when, in 2013, it barred her from Fort Bragg and proposed and then executed her removal from employment. On January 30, 2014, in Appeal No. 0120133232, the Commission reversed the Agency’s procedural dismissal of Complainant’s claim of barment and removal, and remanded the matters to the Agency for further processing. On July 8, 2014, Complainant requested a hearing before an EEOC Administrative Judge. (We note all matters for Complainant at the hearing stage are closed, citing “settlement.”) The Commission docketed EEOC Appeal No. 0120160775 regarding improper processing of prior EEO complaints between June 2011 and August 2015. On May 6, 2016, in Appeal No. 0120160775, EEOC affirmed the Agency’s procedural dismissal of Complainant’s claim. 2020004312 3 ANALYSIS AND FINDINGS We find the record and our regulations support the Agency's dismissal of the instant complaint for various grounds pursuant to 29 C.F.R. § 1614.107(a). Complainant initiated EEO contact in an untimely manner. Complainant initiated EEO contact on April 30, 2020 alleging disparate treatment, denial of reasonable accommodation, and barment from Fort Bragg during her employment between 2011 and March 2013. As of March 2013, Complainant was no longer an Agency employee. Further, Complainant alleged that the Agency entered a 2012 settlement agreement and a 2016 global settlement agreement in bad faith, improperly processed her prior EEO complaints, and interfered with processing of an OWCP claim several years ago. Additionally, we find dismissal is necessary under the doctrine of res judicata. Having thoroughly reviewed the record and history of Complainant's allegations in both this and other proceedings and venues, it is clear Complainant is attempting to revive litigation that has long since been decided. CONCLUSION We AFFIRM the Agency’s procedural dismissal of the instant complaint pursuant to 29 C.F.R. §§ 1614.107(a)(1), (a)(2), (a)(3), and (a)(8). 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 2020004312 4 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. 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. 2020004312 5 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 12, 2021 Date