01970673
01-28-2000
Cara Whitehead, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Cara Whitehead v. Department of Commerce
01970673
January 28, 2000
Cara Whitehead, )
Complainant, )
) Appeal No. 01970673
v. ) Agency No. 96520257
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
)
DISMISSAL
The record reflects that Cara Whitehead (complainant), an Economic
Adjustment Program Specialist with the Economic Development
Administration, entered into a settlement agreement with the agency
on June 6, 1996.<1> In this settlement agreement, the agency agreed
to promote complainant to the GS-12 level with back pay from December
19, 1995, in return for complainant's withdrawal with prejudice of her
informal EEO complaint of race and national origin (American Indian)
discrimination. The settlement agreement was signed by complainant, the
Deputy Assistant Secretary for Economic Development, the Deputy Assistant
Secretary for the Office of Program Operations and the Equal Employment
Opportunity Counselor whom complainant had originally contacted.
Although not entirely clear from the record, it appears that the agency's
Office of General Counsel subsequently decided that because the agreement
lacked a signature from an employee of the Office of General Counsel,
it was not enforceable. Upon talking to various management officials,
complainant learned that the agency was not going to comply with the
settlement agreement. On July 16, 1996, she retained counsel to attempt
to force compliance with the agreement. On July 17, 1996, the agency
presented complainant with a new settlement agreement, which included an
additional requirement that she waive her right to appeal a Reduction in
Force (hereinafter RIF) action which was going to eliminate her position.
Complainant refused to sign this agreement and made a "counter-offer"
that the agency comply with the terms of the original agreement and pay
complainant's attorney's fees. The agency refused.
On July 23, 1996, the agency contacted complainant's attorney and agreed
to implement the original settlement agreement. Complainant's attorney
requested that the agency pay his costs and fees. On October 4, 1996,
the agency refused to pay these costs and fees. On November 1, 1996,
complainant wrote to this Commission "to enlist the assistance of the EEOC
in getting the Department of Commerce to reimburse me for attorney's fees
and expenses, including interest...incurred as a result of the DoC's [sic]
failure to implement my EEO settlement agreement in a timely fashion."
ANALYSIS AND FINDINGS
While the agency's alleged actions in this matter would appear to be
less than appropriate, we have no jurisdiction over this situation.
Our regulations allow us to accept timely appeals involving allegations
of non-compliance with settlement agreements and give us the power to
enforce settlement agreements, including provisions involving attorney's
fees. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. �� 1614.401(d) and 1614.504(b)).
We also have the power to order an agency to pay reasonable attorney's
fees for services performed after the filing of a written complaint and
after the complainant has notified the agency that she is represented by
an attorney. See 64 Fed. Reg. 37,644 37,660 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.501(e)). However, neither
of these powers are applicable to the situation at hand.
Our regulations outline the procedures that a complainant must follow when
he or she believes that the agency has failed to comply with the terms
of the settlement agreement and desires the Commission's assistance.
The first step is to notify the agency's EEO Director, in writing, of the
alleged breach. If the agency does not respond within thirty (30) days,
or complainant does not agree with the agency's decision, complainant may
appeal to the Commission for a determination as to whether the agency has
complied with the terms of the settlement agreement. See 29 C.F.R. �
1614.504. If the Commission determines that there was a breach of a
settlement agreement, complainant may be awarded attorney's fees if she
is judged to be a prevailing party. See EEO Management Directive-110,
11-3 (1999). In the instant case, however, complainant did not follow
these appeal procedures and her case is therefore not properly before
the Commission.
Accordingly, it is the decision of the Commission that we have no
jurisdiction over complainant's case. This appeal is therefore dismissed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (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:
1/28/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date ________________________
Equal Employment Assistant
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.