01A15002_r
12-20-2001
Lawrence Battle, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Lawrence Battle v. U.S. Department of Transportation
01A15002
December 20. 2001
.
Lawrence Battle,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A15002
Agency Nos. DOT-2-98-2040; DOT-2-98-2049
DECISION
On August 22, 2001, complainant filed an appeal with this Commission
regarding an allegation of settlement breach dated June 22, 2001,
to which the agency did not respond. A complainant may file an appeal
with the Commission for a determination regarding whether the agency
has complied with the terms of a settlement agreement thirty-five
(35) days after serving notice to the agency, when the agency
fails to respond to the notice of breach. See EEOC Regulation 29
C.F.R. �1614.504(b). Accordingly, the appeal is accepted as timely.
A review of the record reveals that on October 21, 1998, complainant and
the agency entered into a settlement agreement in resolution of several
complaints he had filed. The agreement provided, among other matters,
that the agency would give complainant a lump sum payment of $26,800.00;
increase complainant's step level from grade 14, step 7 to grade 14, step
10; restore up to 180 hours of sick leave; and provide the Department
of Labor with all requested documentation in connection with a workers'
compensation claim that complainant had filed. The agreement also
contained the following provision:
2. In exchange for the promises of the Aggrieved person contained in
paragraph 1 of this Agreement, the Agency agrees that:
No reprisal action will be taken against Aggrieved person, including
no negative or unfavorable statements or recommendations, which cannot
be substantiated by documentary, material evidence shall be made to
potential employers.
By letter to the agency dated June 22, 2001, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency specifically reinstate his complaint. Specifically, complainant
alleged that agency personnel continue to engage in reprisal against
him in the form of on-going harassment, including, but not limited to,
making false accusations, and providing false, inaccurate or misleading
information to him and to third parties where his employment and EEO
matters are concerned. Complainant alleged the agency also fails to take
appropriate corrective action with respect to his personnel records,
errors in discovery documents produced regarding his other EEO claims
and in correspondence to elected officials.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, he may request that the terms of the agreement
be specifically implemented, or, alternatively, that the complaint be
reinstated for further processing. However, the Commission has held
that a complaint which alleges reprisal or further discrimination in
violation of a settlement agreement's "no reprisal" clause, is to be
processed as a separate complaint and not as a breach of settlement.
Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990); 29 C.F.R. � 1614.504(c). In the present case,
we find that complainant is raising new allegations of reprisal
regarding incidents occurring subsequent to the settlement agreement.
If complainant wishes to further pursue these allegations, he should
contact an EEO Counselor therein. Accordingly, the agency's finding of
no breach of the settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 20, 2001
__________________
Date