01a02714
05-05-2000
Eula P. McKinney, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Eula P. McKinney, )
Complainant, )
)
v. ) Appeal No. 01A02714
F. Whitten Peters, ) Agency No. LU1M99048
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated February 16, 2000, finding that it was in compliance with
the terms of the February 10, 1994 settlement agreement into which the
parties entered.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
. . .
(a) [The agency will] allow complainant the opportunity to obtain the
requirements necessary to maintain her GS-11 position and enhance
her background to meet the qualifications of GS-12 in the future.
These qualifications are listed in Civilian Personnel Letter, dated
March 12, 1993;
(b) [Complainant will receive] on-the-job training (shared experience)
in the area of Data, Specifications Review, Redlining of Specifications
on a scheduled, recurring basis;
(c) A meeting will be held between complainant, [her] immediate
supervisor, and the Civilian Personnel Workman's Compensation
Representative, to establish requirements necessary for workman's
compensation/sick leave.
. . .
If you believe the agency has not complied with the terms of this
agreement, you may, under 29 C.F.R. [�] 1614.504, notify the Chief
EEO Counselor in writing within 30 days of the alleged violation,
requesting that the terms of the agreement be specifically implemented.
Alternatively, you may request that the matter be reinstated for further
processing from the point processing ceased.
Complainant contacted an EEO Counselor on August 20, 1999, among the
issues raised during counseling, complainant alleged that the agency
was in breach of the settlement agreement, and requested that the agency
specifically implement the terms. Specifically, complainant alleged that
the agency failed to give her the opportunity to enhance her background
to meet the qualifications for a promotion to a GS-12, failed to provide
her the opportunity to go on audits, and never conducted a follow-up
meeting between complainant, her immediate supervisor, and the Workman's
Compensation Representative.
In its February 16, 2000 decision, the agency concluded that it was
not in breach of the terms of the settlement agreement. Specifically,
the agency stated that complainant had been given job opportunities
to maintain her GS-11 position and stated that she received GS-12
on-the-job training. In addition, the agency states that complainant's
1993 Workman's Compensation claim was resolved, as intended by provision
(d) of the settlement agreement. Furthermore, the agency stated that
complainant's allegation of noncompliance was untimely, since it was
not raised within thirty (30) days of when complainant knew or should
have known of the alleged noncompliance. The agency relies on the EEO
Counselor's report to show that complainant reasonably suspected a breach
as early as 1995, when the GS-12 position was abolished.
In the present case, we find that complainant's allegation of breach
of the settlement agreement was untimely raised. According to the
regulation set forth at 64 Fed. Reg. 37,644, 37,660 (1999)(to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.504(a)),
if a complainant believes that the agency has failed to comply with
the terms of a settlement agreement or decision, the complainant shall
notify the EEO Director, in writing, of the alleged noncompliance within
30 days of when the complainant knew or should have known of the alleged
noncompliance. We note that the settlement agreement informed complainant
that allegations of noncompliance must be raised within 30 days of the
alleged violation. Upon review of the record, we find that complainant
knew or should have known of the alleged noncompliance as early as
January 1995, when the GS-12 position was abolished. Furthermore,
complainant failed to present any evidence to justify her delay in
alleging noncompliance. Thus, we find that in waiting over five and
a half years to allege noncompliance with the settlement agreement,
complainant's complaint should be dismissed as untimely.
Accordingly, the agency's decision to dismiss complainant's complaint
on the grounds that complainant's allegation of breach was untimely is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 5, 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 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 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.