01996355_r
06-20-2001
Patricia E. Bentley, Complainant, v. Gale A. Norton, Secretary, Department of Interior, Agency.
Patricia E. Bentley v. Department of the Interior
01996355
June 20, 2001
.
Patricia E. Bentley,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of Interior,
Agency.
Appeal No. 01996355
DECISION
Complainant timely appealed the agency's decision that denied her claim
that the settlement agreement entered into between the parties had
been breached.
BACKGROUND
The record reveals that on July 18, 1997, complainant and the agency
entered into a settlement agreement regarding an informal EEO complaint,
which provided, in pertinent part, that in exchange for complainant
voluntarily withdrawing her complaint:
1.
There
will
be
no
change
in
the
grade
or
title
resulting
from
the
removal
of
law
enforcement
from
your
position.
Your
position
description
will
emphasize
expertise
in
Special
Park
uses.
2. Current intentions are that your supervisory duties will continue
as delineated in the new position description.
...
4. The National Park Service shall not take reprisal against you as
a result of your having filed the complaint of discrimination which
is the subject of this informal resolution agreement. However, any
future complaint which you may file against the National Park Service
or the Department of the Interior will be considered and processed as
a separate action and will in no way undermine or render this informal
resolution agreement as null and void.
By letter dated March 15, 1999, complainant notified the agency that
it had breached the settlement agreement. According to complainant,
the agency breached the first and second provisions of the agreement
on February 17, 1999, when she was assigned duties that are outside her
current position description and she was ordered to perform those duties.
Complainant requested that her complaint be reinstated.
By decision dated July 15, 1999, the agency determined that it complied
with the terms of the settlement agreement. The agency determined that
the assignments/duties at issue are applicable to complainant's position
description as a Supervisory Park Ranger, GS-13. The agency stated that
since part of complainant's duties involve the management, handling,
treatment, storage, transportation and disposal of hazardous materials,
the assignment involving the Environmental Auditing Program falls within
her position description.
On appeal, complainant maintains that her understanding of the settlement
agreement was that her duties were to remain essentially the same, and
that the agreement was breached when her duties were changed. Complainant
stated that the Team Leader wanted to take legislation out of her position
description, and make her responsible for conducting environmental audits
at all facilities before the end of Fiscal Year 2002. According to
complainant, this assignment would have added a tremendous workload and
relieved her of all of her other duties, including special park uses.
Complainant states that she signed the settlement agreement because she
wished to expand some initiatives in special park uses.
In response, the agency asserts that the settlement agreement does not
preclude assigning complainant duties within her position description.
The agency maintains that the assignment involving the Environmental
Auditing Program falls within the purview of the position description
assigned to complainant. The agency notes that in addition to this claim
that the settlement agreement was breached, complainant has also filed
a complaint (FNP-99-062) wherein she addressed her position description.
Upon review of the record, we find that the agency did not breach the
settlement agreement. We note that the settlement agreement stated that
current intentions are that complainant's supervisory duties will continue
as delineated in the new position description. We note that over a year
and a half passed from the execution of the settlement agreement to the
alleged breach. The language of the settlement agreement did not require
that the agency be bound indefinitely to complainant's supervisory duties
as delineated under the position description.
We find that complainant is claiming that the agency engaged in an act
of reprisal subsequent to the execution of the settlement agreement.
Therefore, the alleged action relating to complainant's assignment
involving the Environmental Audit Program should not be considered
a breach of the agreement; rather, such a claim is a claim that a
subsequent act of discrimination violated the settlement agreement.
Such claims should be processed as separate complaints under � 1614.106.
Complainant is advised that if she wants to pursue such a complaint,
then, if she has not already done so, she must promptly contact an
EEO Counselor with regard to the issue of her assignment involving the
Environmental Auditing Program. Accordingly, the agency's decision that
no breach occurred is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 20, 2001
__________________
Date