01983059
03-12-1999
Milton E. Hill, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Milton E. Hill, )
Appellant, )
)
v. ) Appeal No. 01983059
) Agency No. LLM-97-036
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
___________________________________)
DECISION
The Commission finds that the agency's decision dated February 9,
1998 dismissing a portion of appellant's complaint (allegations 1
- 7 (nonselection; false statements; alteration of personnel file;
nonselections; no letters of appreciation; not allowed to work in position
and denied proper space and equipment; and threatened with removal))
on the grounds that appellant failed to timely contact an EEO Counselor
and a portion of the complaint (allegation 16 (breach of settlement))
for failing to state a claim, is proper pursuant to 29 C.F.R. �1614.107(b)
and �1614.107(a), respectively.
Allegations 1 - 7, are not timely under the continuing violation
theory, because we find that appellant should have reasonably suspected
discrimination concerning the incidents at issue in allegations 1 -
7 more than 45 days before he contacted an EEO Counselor.
In allegation 16 appellant is alleging that he was discriminated
against because the agency breached a settlement agreement. Such an
allegation does not state an independent claim of discrimination.
Appellant is not claiming in his complaint that the action(s) (or
inactions) that constitute a breach also constitute discrimination;
rather, appellant is claiming that the agency discriminatorily chose to
breach the agreement. An allegation of noncompliance with a settlement
agreement is appropriately raised with the EEO Director as a breach
allegation pursuant to the process set forth in �1614.504.
The agency found that appellant did not raise allegations 8 - 13
with an EEO Counselor and provided appellant with the opportunity to
contact an EEO Counselor within 45 days of receipt of the decision.
The agency informed appellant that failure to contact an EEO Counselor
within that time frame might result in the dismissal of allegations 8 -
13 as untimely. The Commission finds that the agency has not dismissed
allegations 8 - 13. Therefore, allegations 8 - 13 are not at issue in
this decision. The Commission does not decide whether appellant received
or attempted to receive EEO counseling on allegations 8 - 13.
On appeal appellant makes vague references to an "attempt" by appellant
and others to "mount a class action" against the agency. It is not
clear if appellant is claiming that a class action has been filed.
Appellant has not supplied a copy of a class action. Even if appellant
did file a class action containing the same issues as allegations 1 -
7 and 16, appellant has failed to show how such a filing would change
the instant decision.
The agency's decision dismissing allegations 1 - 7 and 16 is AFFIRMED.
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:
March 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations