01976471
01-27-1999
Linda Jimenez, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Linda Jimenez v. Department of the Army
01976471
January 27, 1999
Linda Jimenez, )
Appellant, )
)
v. ) Appeal No. 01976471
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal on August 6, 1997 alleging that
the agency breached a settlement agreement entered into by the parties
on January 31, 1997. On appeal appellant alleged that the agreement
provided that appellant would be permanently placed in the Clerk, NF-01
position (after appellant's performance reached an acceptable level),
but that the agency breached the agreement by placing appellant into
the position of NF 1 Supply Clerk.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the 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.
The record shows that by letter dated June 30, 1997 appellant informed
the agency that it had breached the agreement by placing appellant into
the position of NF-1 Supply Clerk. The record shows that appellant was
placed into the position of Supply Clerk, Pay Plan and Occ. Code NF-2005,
grade 01, effective April 17, 1997. By letter dated October 31, 1997 the
agency informed appellant that appellant had failed to raise her breach
allegations until 74 days after the alleged breach on April 17, 1997.
The agency requested that appellant provide an explanation for her delay.
There is no decision in the record from the agency on the matter.
The Commission finds that appellant should have known of the alleged
noncompliance on April 17, 1997. Appellant has not indicated why she
should not have known of the alleged noncompliance on April 17, 1997.
The Commission finds that appellant notified the agency of the breach on
June 30, 1997. Appellant has not claimed that she notified the agency
of the breach prior to June 30, 1997. Therefore, we find that appellant
failed to raise her breach allegation within the 30 day time frame set
forth in �1614.504(a). Appellant has not provided any explanation in
the record as to why the time deadline for raising the breach allegation
should be extended. Therefore, the Commission finds that appellant
failed to timely raise the breach allegation and that the allegation is
properly dismissed as untimely raised.
The Commission finds that appellant failed to timely raise her allegation
of a settlement breach and that her breach allegation is properly
dismissed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(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:
January 27, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations