Charlie Strickland, Jr., Complainant,v.Carol M. Browner, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01986937 (E.E.O.C. Feb. 3, 2000)

01986937

02-03-2000

Charlie Strickland, Jr., Complainant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.


Charlie Strickland, Jr. v. Environmental Protection Agency

01986937

February 3, 2000

Charlie Strickland, Jr., )

Complainant, )

)

v. ) Appeal No. 01986937

) Agency No. 95-63126-022, et al.<1>

Carol M. Browner, )

Administrator, )

Environmental Protection )

Agency, )

Agency. )

_______________________________)

DECISION

Complainant filed the instant appeal from the agency's August 11, 1998

decision, finding that complainant failed to timely raise his allegations

that the agency breached the settlement agreement entered into by the

parties on May 20, 1997.<2> As an initial matter, we find that the

agency brief is untimely and will not be considered in this decision.

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides

that any settlement agreement knowingly and voluntarily agreed to by the

parties shall be binding on both parties. If the complainant believes

that the agency has failed to comply with the terms of a settlement

agreement, then the complainant shall notify the EEO Director of the

alleged noncompliance "within 30 days of when the complainant knew or

should have known of the alleged noncompliance." 29 C.F.R. � 1614.504(a).

The complainant may request that the terms of the settlement agreement

be specifically implemented or request that the complaint be reinstated

for further processing from the point processing ceased. Id.

The Commission finds that the first time complainant raised the breach

allegations in writing per the agreement and EEOC Regulation 29 C.F.R.

� 1614.504(a), was in July 1998, which was more than thirty days after

complainant knew or should have known of the alleged breach. Complainant

has not claimed that he was not reasonably aware of the breach until

thirty days or less before he raised the breach allegation in July 1998.

Complainant's contacts with an EEO Counselor prior to July 1998 did

not clearly raise a breach allegation; rather the contacts with an EEO

Counselor prior to July 1998 appear to have concerned allegations of

retaliation which are properly processed as non-breach allegations

pursuant to EEOC Regulation 29 C.F.R. � 1614.504(c). The Commission

agrees with the agency that complainant failed to timely raise the breach

allegations. Because of our disposition we do not address the agency's

alternative argument that the agency did not breach the agreement.

The agency's decision dismissing complainant's breach of settlement

allegation is AFFIRMED.

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:

February 3, 2000

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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________

Date

1The "et al." was used by the agency in identifying the agency docket

number.

2On 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.