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.