[Redacted], Tommie L., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 26, 2021

Appeal No. 2021001826 (E.E.O.C. Apr. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommie L.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2021001826 Agency No. ARUSAR21DEC00078 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 8, 2021, dismissing a formal complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant worked as a Human Resources Specialist, Grade GS-11, in the Civilian Personnel Advisory Center at the Agency’s Fort McCoy garrison, near Tomah, Wisconsin. On March 11, 2019, the Agency removed Complainant from his position. Complainant contacted an EEO Counselor, but the parties were unable to resolve the matter informally. On November 25, 2019, Complainant timely filed a “mixed case” appeal contesting his removal before the Merit Systems Protection Board (MSPB). On March 26, 2020, as a result of scheduling problems caused by the COVID19 pandemic, the MSPB’s Administrative Judge (MSPB AJ) dismissed the appeal without prejudice and permitted Complainant to refile the appeal at a later date. See MSPB Docket No. CH-0752-20-0093-I-1. On June 16, 2020, Complainant timely refiled the MSPB appeal. 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 2021001826 On December 1, 2020, Complainant signed a Negotiated Settlement Agreement with the Agency. On December 2, 2020, Complainant’s attorney, the Agency settlement authority, and an attorney for the Agency also signed the Negotiated Settlement Agreement. On December 3, 2020, the Agency submitted the executed Negotiated Settlement Agreement to the MSPB AJ for review. Determining the settlement agreement was legally sufficient, on December 9, 2020, the MSPB AJ thereupon dismissed Complainant’s appeal. The settlement agreement was accepted into the MSPB’s record for enforcement. See MSPB Docket No. CH-0752-20-0093-I-2. On December 24, 2020, Complainant filed a formal EEO complaint alleging that the Agency had subjected him to discrimination based on disability and reprisal for prior protected EEO activity when: On December 1, 2020, Complainant was coerced into signing a Negotiated Settlement Agreement on his claims filed with the Merit Systems Protection Board so he could receive a good reference needed to continue pursuit of federal employment. On January 8, 2021, the Agency issued a final decision dismissing the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Specifically, the Agency reasoned that Complainant’s claim constituted an improper collateral attack on a decision from the MSPB. The instant appeal followed. On appeal, Complainant argues that the Agency had started to harass him beginning in early 2017. Complainant presented documentation purporting to show that his supervisor drastically increased his workload relative to his peers until he was terminated in 2019. Complainant accused the Agency of continued adverse actions against him based on his disability and in reprisal for EEO activity. Specifically, Complainant stated that the Agency had undermined his efforts to obtain employment with other federal agencies. According to the Complainant, whenever prospective employers inquired about his prior employment, Agency management either declined to respond or provided inaccurately negative reports about his performance. Complainant believed that the Agency would provide more positive references to other employers but only after he signed the Negotiated Settlement Agreement. Complainant states that the Agency rejected his original signature on the Negotiated Settlement Agreement because he also wrote that he had signed under extreme financial duress because the Agency was withholding appropriate reference information from prospective employers. Complainant re- signed the Negotiated Settlement Agreement without the statement that Agency had coerced him. Complainant maintains that since the Negotiated Settlement Agreement was executed, the Agency has continued preventing him from acquiring gainful employment. ANALYSIS AND FINDINGS EEOC Regulation C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a complaint that fails to state a claim. We have consistently held that an employee cannot use the EEO complaint process to collaterally attack adjudicatory decisions made in another forum. Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC 3 2021001826 Request No. 05940585 (Sep. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). We read Complainant’s claim and supporting arguments to allege a violation of the Negotiated Settlement Agreement when Agency management failed to provide favorable information about his performance and awards. However, the Commission is not the proper forum for Complainant to raise the matter. Only the MSPB, not the EEOC, can enforce the Negotiated Settlement Agreement at issue. We remind Complainant that the MSPB AJ's decision included instructions about seeking relief from the MSPB if the Negotiated Settlement Agreement were breached. Here, the parties reached the Negotiated Settlement Agreement through the MSPB process. See MSPB Docket No. CH-0752-20-0093-I-2. In such circumstances, we have previously found that the proper forum for a claims of noncompliance is not the Commission, but rather the MSPB itself. The Agency properly dismissed Complainant's present complaint, for failure to state a claim, in accordance with to 29 C.F.R. § 1614.107(a)(1). CONCLUSION We AFFIRM the Agency's final decision dismissing the complaint for the reasons discussed above. 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 4 2021001826 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. 5 2021001826 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 April 26, 2021 Date