Jorge L. Flores, Complainant,v.Robert E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01992633 (E.E.O.C. Feb. 15, 2000)

01992633

02-15-2000

Jorge L. Flores, Complainant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.


Jorge L. Flores, )

Complainant, )

)

v. ) Appeal No. 01992633

) Agency No. 99-2009

Robert E. Rubin, )

Secretary, )

Department of the Treasury, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's January 14, 1999 decision

dismissing the complaint is proper pursuant to the provisions of 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.107(a)(1)).<1>

The record shows that Complainant alleged that he had been discriminated

against and harassed on the bases of age, national origin, sex, and

reprisal when on August 25, 1998, he was threatened with the option of

a directed reassignment to Washington, D.C. or retiring on discontinued

service.

The agency dismissed the complaint on the basis of failure to state

a claim after finding that Complainant had failed to show that he had

been aggrieved.

On appeal, Complainant contends that he was aggrieved when he was

�subsequently presented with a copy of a printout showing [his]

current potential retirement earnings if [he] refused to accept forced

reassignment and if [he] opted to retire under a �discontinued service

retirement'�. In response to Complainant's appeal, the agency argues

that Complainant has not been reassigned.

EEOC Regulations provide that an agency shall dismiss a complaint that

fails to state a claim. In the instant case, the record reflects that

the statements purportedly directed toward Complainant on August 25, 1998,

were made within the context of a settlement discussion. The Commission

has previously held that settlement negotiations, including any statements

and proposals made therein, are to be treated as confidential and

privileged in order to facilitate candid interchange to settle disputes

formally. Montague v. Department of the Army, EEOC Request No. 05920321

(May 7, 1992). In that case, the Commission also held that it would

not allow complainants to base new complaints on such negotiations. Id.

Accordingly, the final agency decision is hereby 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 15, 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 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.