Kay L. Rogerson, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJan 14, 2000
01993216 (E.E.O.C. Jan. 14, 2000)

01993216

01-14-2000

Kay L. Rogerson, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Kay L. Rogerson, )

Complainant, )

)

v. ) Appeal Nos. 01993216, 01993719

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

__________________________________ )

DECISION

Complainant filed the instant appeals from the agency's March 4,

1999 decision regarding a settlement agreement between the parties

(EEOC Appeal No. 01993216) and an agency decision dated March 29, 1999

dismissing four complaints (EEOC Appeal No. 01993719). <1> The Commission

finds that the instant appeals are properly consolidated in one decision.

64 Fed. Reg. 37,644, 37661 (to be codified as 29 C.F.R. � 1614.606).

On January 31, 1996, complainant and the agency entered into a Stipulation

for Compromise Settlement before the United States District Court for the

District of South Dakota (Western Division) in which complainant settled

her civil action containing allegations of employment discrimination.

The settlement agreement also stated that complainant would withdraw

with prejudice all pending EEO complaints, that complainant would not

return to work for the agency, and that complainant would not apply for

employment with the agency in the future.

Complainant subsequently informed the agency that it had breached

the settlement agreement. By letter dated March 4, 1999, the agency

informed complainant that the administrative process has been closed

because jurisdiction remains with the federal courts. Complainant also

filed four separate complaints, all dated March 17, 1999, alleging that

she was discriminated against on the bases of race, religion, sex, age,

and disability. The agency dismissed those complaints in a decision

dated March 29, 1999.

EEOC Appeal No. 01993216

The appeal in EEOC Appeal No. 01993216 is from the agency's March 4, 1999

determination regarding the breach of settlement claim. The Commission

agrees with the agency that this matter has been removed from the

administrative process because complainant has settled the matter in

a district court. The proper forum to allege breach of a settlement

agreement reached at the district court is the federal court forum,

not the EEO administrative process. Therefore, the agency's March 4,

1999 determination is AFFIRMED.

EEOC Appeal No. 01993719

The appeal in EEOC Appeal No. 01993719 is from the agency's March 29,

1999 decision dismissing four of complainant's complaints. The agency

found that three of the complaints were against different agencies

(Department of Labor, Office of Personnel Management, and Equal Employment

Opportunity Commission). The agency dismissed these three complaints for

failing to state a claim because they were filed with the wrong agency.

The remaining complaint the agency found was against the Department

of the Air Force. The agency identified five claims in the complaint

against the Department of the Air Force and dismissed those claims for

a variety of reasons including failure to state a claim.

The Commission's review of the four complaints shows that complainant is

ultimately alleging in all of the complaints that she was discriminated

against when the agency improperly induced her into entering the

settlement agreement and when the agency breached the agreement by

numerous actions. Complainant also attempts to re-litigate settled

matters in her complaints including the terms of the agreement (e.g.,

complainant would not return to work for the agency) and the matters that

led to the settlement agreement. The Commission finds that complainant's

attempts to re-litigate settled matters are properly dismissed for

failing to state a claim. 64 Fed. Reg at 37,656 (to be codified as

and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)). The Commission

shall not disturb the settlement agreement reached at the district court.

As stated earlier in this decision, complainant's breach claims should be

raised in the federal court forum where the matter was settled and not

through the administrative EEO process. To the extent that complainant

is attempting to raise claims of discrimination involving agencies other

than the Department of Air Force, the Commission finds that those claims

are properly dismissed for failing to state a claim because � 1614.106(a)

provides that a complaint must be filed with the agency that allegedly

discriminated against the complainant. 29 C.F.R. � 1614.107(a)(1).

Because of our disposition the Commission need not address the agency's

other reasons for dismissing the complaints. The agency's March 29,

1999 decision dismissing the four complaints 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:

Jan. 14, 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

Equal Employment Assistant

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.