(excerpts from investigative file)

Office of Federal Operations

U.S. Equal Employment Opportunity Commission

P.O. Box 77690

Washington D.C. 20013

In Re: Earl D. Smith, v Richard Roudebush, Veterans Medical Center

Docket No: 0120130700, Appellant’s Memoranda in reply and support of appellant’s Statement of Opposition

     I, Earl D. Smith, submit this Memoranda in support of Appellant’s reply and statement of opposition for the above case.

     On December 20, filed a Request for Identification of Papers, Documents, and Correspondence made during the course of the proceeding, Case No. 200J-0583-2011103115. On November 8, 2012 the Agency issued its “Breach of Settlement Determination”.

     I made claim with the Veterans Administration, Medical Center, EEO counselor, alleging that because of my age, race, and disability, I was treated in a disparate manner in my assignment of duties, and discrimination in hiring when I was not given the position of Medical Supply technician, purchasing. It was understood and known that as a program support clerk GS 4, was doing more of the duties of a Medical Supply Technician (medical) GS-5/6/7.) The Veterans Administration, Medical Center, EEO counselor referred me to the Office of Resolution Management (ORM) Great Lakes Operations Field Office in Hines, Illinois for Alternative Dispute Resolution

I. Issues

     a. The first issue is whether the case was case closed prematurely, or before the time allowed to revoke the Agreement had expired.

        b. The second issue is whether closing ‘the case before the time allowed to revoke the Agreement had expired, prevented me from revoking the Agreement.

       c. The third issue is whether preventing me from revoking the Agreement by closing the

case before the time to revoke the Agreement had expired, was reprisal, or retaliation in itself that prevent(s), and is preventing me from bringing any pending, and future claims.

II. Facts

a. The Agreement was. entered into on June 29, 2011. The Agreement gave me 7 days to revoke the Agreement. An email of ——–, ORM was forwarded from ———- to me on July 28, 2011, 3:02PM stated: “By entering into the settlement agreement Mr. Smith, you waived all rights to further administrative processing and all rights to file a civil action in connection with this complaint of discrimination. On July 6, 2011, you were mailed a letter to validate closure of your EEO complaint from the Great Lakes Operations, Office of Resolution Management.”, Exhibit A. The September 15, 2011 email from—

b.            ——— states: “(1) Do you feel that your settlement agreement signed on June 29, 2011 (and Director’s designee signed on (6/30/2011) is still in place; if not (2) Do you feel. that you revoked the settlement agreement? If so, what date did that occur?”, Exhibit B, page 2, part 2, paragraph 1 line(s) 4-6.

c. The July 27, 2011 email of ———-,Human Resource Specialist states: I know Mr. Smith revoked the settlement on July 6. However I was wondering if you have set up a date [remediate] Mr. Smith’s claim?”, Exhibit D, Document 5, page 1, part 3, lines 1-2 of my October 1, 2012 Response to ORM’s, Ms. Suppa’s September 25, 2012. Request, made a part here by reference. —————-, EEO Counselor’s September 15, 2011 email asked in part: whether you felt that you revoked the settlement agreement? If so, what date did that occur?” My reply to this inquiry was: “Yes, I feel that I rescinded the agreement on July 6, 2011”, Exhibit B, page 2, part 2, paragraph 1, line 6.

d. The email of ———-, ORM, Great Lakes states: “According to a provision (I. Waivers, Section A), of your signed. and dated settlement agreement, you voluntarily withdrew all pending informal and formal EEO complaints, including and unlimited to EEO Case Number: 200J-.6583-2011103115, Exhibit A.

III. Discussion

a. The issue of whether the State of Indiana Rule(s), or Federal Rule(s) apply is not in dispute in the case. The Agreement allowed 7 days to revoke the agreement. I had until end of the business day July 7, 2011 to revoke the Agreement. I revoked the Agreement on July 6, 2011. I revoked the Agreement within the 7 days allowed by the ADEA to revoke the Agreement. The case was closed on July 6, 2011 before the end of the business day. The case was closed too early, or prematurely.          During the 21 days from when the Agreement was to be implemented, or take effect I repeatedly tried to get the Agency to renegotiate, or remediate. The repeated effort to get the Agency to renegotiate indicated that I revoked the agreement. The refusal of the Agency to renegotiate indicated that it committed an act that could not be repaired. It was made clear that if the agreement could not be corrected than it is revoked. It was very clear the agency would not correct the agreement.

b. It cannot be interpreted to mean that the agreement was voluntary because in the third paragraph of my August 28, 2011 claim said in part “…agreement entered to .” also said that the occurrences were continuous and ongoing. This included the Agreement itself. Further, I never said breach. I said retaliation, or reprisal. In preventing me from revoking the Agreement the Office of Resolution Management gave the Medical Center an offer it could not refuse.

c. In the first instance, the Department of Veterans Affairs, Office of Resolution Management, Washington D.C. has made a determination on a claim I have not made. I am not claiming breach. I am claiming revocation. The Agency is confusing revocation with breach. The harm done in construing revocation, and breach to be the same, when they are in fact different prevents me from denying its unauthorized misrepresentations. Throughout its determination it starts on the subject of revocation, then goes to the subject of breach.

      I am not claiming breach; instead, I am asserting revocation as the central issue here. ORM represents itself and the Medical Center regarding the specific issue of revocation in dispute. Conversely, ORM represents me, or more accurately misrepresents me, concerning the alleged issue of breach. Put differently, ORM represents itself and me despite our disagreement and opposition regarding revocation. It represents opposing interests simultaneously within the same proceeding and transactional context here. More important than representation by expert or counsel is my right to represent myself.

An expert is needed only to prevent me from misrepresenting my own position. Ordinarily, I know the essential facts underlying my claim and circumstances.

     An expert or counsel helps organize, prepare, and properly present those facts effectively. Further, expert counsel assists me in correctly applying the law to those established facts. I assert ORM involuntarily waived my right to be advised and represented by counsel. A determination was made that I be represented solely by ORM, excluding even myself. ORM has involuntarily bound me to itself and to its Agreement. This determination constituted a question of law that unlawfully bound me to ORM. Again, I am not asserting breach but instead asserting revocation. I further claim denial of revocation constituted retaliation against me. Although a claim arose when the Agreement was imposed, limitations continue running.

IV. Conclusion

a. It is concluded that the case was closed too early.

b. Closing the case before the time allowed to revoke the Agreement had expired, prevented me from revoking the Agreement:

c. The time for bringing a claim on the Agreement continues because it was not voluntary. am claiming that I should keep any benefit(s) I may have received from the Agreement because it was forced on me. I am seeking Three Hundred Thousand Dollars ($300,000.00). It is requested the case be remanded to the “Agency” for renegotiation. If the Equal Opportunity Commission cannot make a constitutional decision on the issues in this case, it is requested that this case be referred to the appropriate agency to make the decision.

Respectfully Submitted, Earl D. Smith