01983744
11-19-1999
John F. Kierod, Complainant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
John F. Kierod, )
Complainant, )
)
v. ) Appeal No. 01983744
) Agency No. 98-3114
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
_______________________________ )
DECISION
Complainant filed the instant appeal from the agency's April 1, 1998
dismissal of complainant's complaint for failing to state a claim pursuant
to 64 Fed. Reg. 37,644, 37656 (to be codified as and hereinafter cited
as 29 C.F.R. �1614.107(a)(1)) for stating the same claim that has been
settled.<1>
The record shows that complainant and the agency entered a settlement
agreement on May 14, 1997 in which complainant agreed to withdraw his
informal complaint of discrimination filed on November 1, 1996 and the
agency agreed to the following:
Per your request for reasonable accommodations, ACS II Branch agrees
to permanently reassign you from a GS-7, Tax Examiner Assistant, to a
permanent GS-4, Tax Examining Clerk, in Accounting Branch, effective
May 25, 1997.
Complainant filed the instant EEO complaint on February 13, 1998 in
which he claimed that he was discriminated against on the bases of
race and disability. While complainant did not clearly state what
he is claiming in the instant EEO complaint<2>, the Commission finds
that complainant appears to be claiming that the agency breached the
settlement agreement and/or is raising the same claim as he raised in
his informal complaint dated November 1, 1996 (which was settled).
To the extent that complainant is attempting to raise in the instant
EEO complaint the same claims of discrimination that were settled
in the May 14, 1997 settlement agreement, we find that the agency
properly dismissed the instant complaint as stating the same claim that
was settled. See 29 C.F.R. �1614.107(a); 64 Fed. Reg 37,644, 37,660
(1999) (to be codified as and hereinafter cited as 29 C.F.R. �1614.504)
(settlement agreements are binding).
To the extent that complainant is attempting to claim that the agency
breached the agreement, we find that the filing of a complaint
of discrimination under the regulation set forth at 64 Fed. Reg
37,644, 37,656 (1999) (to be codified as and hereinafter cited as 29
C.F.R. �1614.106) is not the proper procedure. The proper procedure
for filing a breach of settlement agreement is set forth in �1614.504.
If a 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. If complainant wants to pursue a breach of
settlement allegation, then complainant should contact the EEO Director
pursuant to �1614.504(a). The Commission does not address whether such
a claim could now be timely or whether such a claim has already been
raised with and decided by the agency.
The agency's dismissal of the complaint 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 19, 1999
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:
_________________________
__________________________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.
2In the section of the complaint where the claims are to be listed
complainant wrote "see attached." There are various letters and documents
attached to the formal complaint.