05990764
10-13-2000
____________________ v. Department of Agriculture 05990764 10-13-00 . ____________________, Complainant, v. Daniel Glickman, Secretary, Department of Agriculture, Agency.
____________________ v. Department of Agriculture
05990764
10-13-00
.
____________________,
Complainant,
v.
Daniel Glickman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05990764
Appeal No. 01962207
DECISION
____________________ (hereinafter referred to as complainant) timely initiated
a request to the Equal Employment Opportunity Commission (Commission)
to reconsider the decision in ________________ v. Daniel Glickman,
Secretary, Department of Agriculture, EEOC Appeal No. 01962207 (May
6, 1999).<1> EEOC Regulations provide that the Commissioners may,
in their discretion, reconsider any previous decision where the party
demonstrates that: (1) the previous decision involved a clearly erroneous
interpretation of material fact or law; or (2) the decision will have a
substantial impact on the policies, practices, or operation of the agency.
29 C.F.R. � 1614.405(b). For the reasons set forth herein, complainant's
request is denied. The Commission, however, reconsiders the previous
decision, in part, on its own motion.
ISSUE PRESENTED
The issue herein is whether the previous decision properly determined
that the underlying settlement agreement was valid.
BACKGROUND
The facts in this case were adequately set forth in the previous decision,
and will be repeated herein only in pertinent part. A review of the
record reveals that complainant and the agency settled the underlying
complaint on October 6, 1995. The agency agreed, among other things, to
document complainant's detail, reassign her, provide her with a position
description and performance standards, pay specified attorney's fees
and compensatory damages, and provide her with various accommodations.
All of the stated provisions were to be implemented within specified
time frames. On November 3, 1995, complainant wrote to the agency,
seeking to void the agreement and reinstate her complaint on the grounds
that she received ineffective representation from her attorney during
the settlement negotiations. Further, complainant asserted that the
agency failed to accommodate her various medical conditions during
that time. Subsequently, complainant, through new counsel, advised the
agency that it had breached the settlement agreement when it failed to
implement the specified provisions within the time limitations provided.
After receiving no response from the agency, complainant filed an appeal
with the Commission.
The previous decision initially rejected complainant's assertion
that the settlement agreement should be voided because of alleged
ineffective representation by her counsel. The previous decision noted
that complainant was represented by a firm well versed in federal EEO
law, and that there was no evidence the agency coerced complainant
into proceeding with negotiations against her will. Nevertheless, the
previous decision concluded that the agency breached certain provisions
of the settlement agreement, as alleged by complainant.
In her request for reconsideration, complainant challenged only that
portion of the previous decision which found the settlement agreement
to be valid. Complainant, for the first time, asserted that while she
believed her representative was an attorney at the time of settlement, the
individual was actually a law student. Complainant indicated that she did
not wish to appear uncooperative or hostile by leaving the negotiations.
The agency did not submit any arguments in response to complainant's
request.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument which tends to establish that at least one of the
criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to be
reconsidered, the request must contain specific information which meets
the requirements of this regulation. For the reasons set forth below,
the Commission denies complainant's request for reconsideration.
A review of the record herein reveals that the previous decision correctly
determined that complainant failed to establish a valid basis for voiding
the settlement agreement. While complainant asserted, in her request,
that the individual who represented her was not an attorney, complainant
submitted no evidence to support her contention. It is noted that,
on appeal, complainant referred to the individual as either her counsel
or her attorney. Further, the individual signed various letters to the
agency which were on firm letterhead. Accordingly, the Commission denies
complainant's request for reconsideration.<2>
Nevertheless, the Commission will reconsider the previous decision,
on its own motion, to address the rationale set forth in footnote 3.
In that footnote, the previous decision distinguished this case
from Oubre v. Entergy Operations, Inc., 522 U.S. 422, 118 S.Ct. 838
(1998). The Commission, however, finds that the decision in Oubre is not
applicable to the case herein. Specifically, in her underlying complaint,
complainant did not raise a claim of age discrimination under the ADEA.
Further, the case herein does not involve a waiver situation.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request fails to meet the criteria of 29 C.F.R. �1614.405(b), and it is
therefore the decision of the Commission to DENY complainant's request.
The decision in EEOC Appeal No. 01962207 (May 6, 1999), as modified,
remains the Commission's final decision. The agency shall comply with
the provisions of the Order set forth below. There is no further right
of administrative appeal on a decision of the Commission on this request
for reconsideration.
ORDER
1. Within ten (10) calendar days of the date this decision becomes final,
the agency is ORDERED to provide complainant, in writing, the option
of reinstating her May 1995 complaint at the point processing ceased
in October 1995 or seeking the agency's specific compliance with the
settlement agreement.
2. If the complainant chooses to reinstate her complaint, the agency
is ORDERED to resume the processing of her complaint from the point
where processing ceased. As a precondition to the reinstatement of her
complaint, the complainant shall not be required to return any attorney's
fees paid by the agency pursuant to the agreement or to forego any
accommodations, or training she might have received.
3. If the complainant instead chooses specific performance of the
settlement agreement, the agency is ORDERED to implement all the terms
of the settlement agreement within thirty (30) calendar days of receiving
the complainant's request, including the payment of interest on any sums
of money not paid on time pursuant to the terms of the agreement.
4. Within thirty (30) calendar days of the date the agency receives
the complainant's notice of her decision to seek either reinstatement of
her compliant or specific performance of the agreement, the agency shall
send to the Compliance Officer referenced below copies of the agency's
letter of options to the complainant and her response thereto.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
__________________________________
Frances M. Hart, Executive Officer
Executive Secretariat
_____10-13-00_____________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614, where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
2The agency is advised that it is obligated to provide a hearing
impaired claimant with an interpreter, including during after-hours
settlement discussions, unless the claimant knowingly and voluntarily
waives the service. See, e.g., Phillips v. Department of the Treasury,
EEOC Request No. 05970651 (March 7, 1997) (ordering agency to provide
claimant with an interpreter during meeting with EEO Counselor).