0120090357
02-05-2009
Robert A. Ibarra, Complainant, v. Elaine L. Chao, Secretary, Department of Labor, Agency.
Robert A. Ibarra,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120090357
Agency No. IM0811178
DECISION
Complainant filed an appeal with this Commission regarding an EEO
complaint that he attempted to file with the agency.
The record reflects that complainant's removal was proposed by the agency
on May 9, 2008, and thereafter he entered into a settlement agreement
dated May 23, 2008. In the settlement agreement, the agency agreed to
allow complainant to resign from his position in lieu of termination,
and to remove the notice of termination from his official personnel file.
In return complainant agreed that he would "not file any challenge to
this issue in any forum."
Thereafter, complainant sought to file an EEO complaint based on race
(Hispanic), national origin (Guatemala) and reprisal in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. involving incidents leading up to his removal. Complainant was
informed in a letter dated September 19, 2008, that his informal complaint
was being closed because of the settlement agreement and was informed
of how to file a breach of settlement agreement claim. No final agency
decision with appeal rights was issued. In response to the letter,
complainant filed the instant appeal with the Commission. Complainant
states that the agreement did not prohibit him from filing an EEO
complaint and, therefore, he is challenging the agency's dismissal of
his complaint.
In response to the appeal, the agency submitted a brief dated December 10,
2008 explaining its reasons for dismissing the complaint. The agency
noted that complainant submitted an informal complaint in April 2008
which he later withdrew, and which contained the same allegations
that he attempted to raise with the EEO counselor in a June 23, 2008
counseling form in the instant matter. When the counselor realized
that there was a settlement agreement involving complainant's removal,
only the September 19, 2008 letter was sent to complainant rather than a
final agency decision dismissing the matter. In its brief, the agency
argues that the settlement agreement barred complainant from filing an
EEO complaint with respect to his removal.
Under the circumstances of this case, and in the interest of expeditiously
resolving this matter, the agency's September 19, 2008 letter is being
recognized as its final agency decision dismissing the complaint.
The Commission agrees with the agency that the settlement agreement
clearly states that complainant would not challenge the issue of his
removal in any forum, which includes the EEO process. The Commission
has long held that a complainant may validly waive claims arising from
discriminatory acts or practices which occurred before the execution of
the settlement agreement. Vigil v. Department of the Army, EEOC Request
No. 05960521 (June 22, 1998), (citing Bimes v. Department of Defense,
EEOC Request No. 05970359 (March 27, 1997).
The incidents complainant is attempting to raise in his current complaint
occurred before he signed the settlement agreement and are directly
related to his removal, the subject of that agreement. Therefore,
complainant is bound by the waiver he agreed to in the settlement
agreement. The Commission also notes that complainant raised the
same claims with the EEO counselor in April 2008, but withdrew that
complaint. He cannot raise the same claims again in a later complaint.
Accordingly, the agency's dismissal of his EEO complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the
request and the civil action must be filed within the time limits as
stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 5, 2009
__________________
Date
2
0120090357
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090357