____________________v.Department of Agriculture 05990764 10-13-00 . ____________________, Complainant, v. Daniel Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 13, 2000
05990764 (E.E.O.C. Oct. 13, 2000)

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).