John D. Senander, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 7, 2000
01A05516 (E.E.O.C. Dec. 7, 2000)

01A05516

12-07-2000

John D. Senander, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


John D. Senander v. U.S. Department of the Treasury

01A05516

December 7, 2000

.

John D. Senander,

Complainant,

v.

Lawrence H. Summers,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A05516

Agency No. 00-4220

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated July 13, 2000, dismissing the instant complaint

on the grounds of failure to state a claim. The agency found that

complainant did not have standing under the Commission's regulations to

claim breach of the March 9, 1998 settlement agreement into which the

parties entered.<1> See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);

29 C.F.R. � 1614.405; 29 C.F.R. � 1614.107(a)(1); and 29 C.F.R. �

1614.103(a).

The settlement agreement provided, in pertinent part, that:

(1) The Employee will retire from Agency employment effective May 3,

1998....

(2) The Agency hereby withdraws its proposal [to terminate] letter,

dated November 17, 1997. ....

(3) The Employee will not file any appeal, grievance, complaint, and/or

any other type of legal, equitable, or administrative claim in regard

to his employment with the Agency....

(4) Paragraph 3 does not include ( a pending EEO complaint). ...

(5) The Parties will not disclose the terms of this agreement to

third parties, except to the extent necessary to effectuate such terms

and/or as required by law and/or court or judicial order. ...

(6) ....In the event that the Agency violates any of the terms

of this Agreement, the Employee may take appropriate action, which may

include administrative and/or legal action.

Complainant initiated EEO Counselor contact on March 29, 2000, claiming

that the agency breached the settlement agreement with an unauthorized

disclosure (provision 5 above) so that he was entitled to file a

formal EEO complaint regarding the agency's proposed termination

(provision 6 above). Specifically, complainant claims that in the

course of litigating the EEO complaint which was pending at the time

the settlement agreement was executed, (provision 4 above), the agency

attorney disclosed the settlement agreement to the U.S. District Attorney

representing the agency in Federal District Court in the civil action.

Complainant argues that the disclosure was not ordered by the court,

and not pertinent to the litigation, and therefore constituted a breach

of the settlement agreement.

In its July 13, 2000, final decision, the agency concluded that

complainant had no standing to file the instant complaint. The agency

found that the settlement agreement was not executed to settle either a

formal or informal EEO complaint, such that the matter was not within

the purview of the Commission's regulations. The agency additionally

found that complainant's claim did not fall under the Commission's

regulations because it was more in the nature of a Privacy Act violation,

and also because it constituted a collateral attack on the District

Court proceedings.

Upon review, we find that although complainant contends that he agreed

not to pursue a reprisal claim against the agency in consideration for

the agency executing the settlement agreement, there is no evidence

that complainant initiated the EEO process regarding his proposed

termination prior to executing the settlement agreement. Moreover,

the terms of settlement agreement do not reflect that it was entered

into upon consideration of complainant withdrawing an EEO action.

Rather, the settlement agreement provides that in return for the agency

withdrawing the proposed termination letter (and certain other actions),

complainant agreed to retire by a certain date and to forebear pursuing

future actions against the agency regarding his employment. Therefore,

although the settlement agreement appears to be a valid enforceable

agreement between the parties, we find that the subject settlement

agreement is not within the purview of the Commission's regulations.

Accordingly, we AFFIRM |the agency's decision dismissing the present

matter pursuant to 29 C.F.R. � 1614.107(a)(1).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 7, 2000

__________________

Date

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

______________________________

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 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.