01996091_r
06-11-2001
Richard L. Schnelle, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Richard L. Schnelle v. Department of Agriculture
01996091
June 11, 2001
.
Richard L. Schnelle,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01996091
Agency No. 95493
DECISION
Complainant filed an appeal with this Commission from an agency decision
dated February 10, 1999, finding that it was in compliance with the
terms of the November 28, 1997 settlement agreement into which the
parties entered.
The settlement agreement provided, in pertinent part, that:
3. The Complainant and the Agency hereby certify that:
The terms of this agreement are to remain confidential and not be
divulged, publicized, or communicated to other persons without the
expressed written consent of the Complainant and the Agency; provided,
however, that if required by statute, regulation, or order of a court
of competent jurisdiction; and provided, further, that the Agency and
the complainant may disclose the terms of this agreement to those who
have a �need-to-know� the contents of this agreement in the performance
of their official duties.
By letter to the agency dated November 4, 1998, complainant claimed that
the agency had violated the confidentiality provision of the agreement
when an uncorrected Standard Form-50 (SF-50) (which was involved in his
underlying complaint) was forwarded from the White River National Forest,
to the Arapaho/Roosevelt National Forest, where he was placed as a result
of the settlement agreement. Complainant specifically asserted that
the SF-50 contained comments that were used to �libel� and �discredit�
him and contributed to a decision to terminate him for unjust reasons.<1>
In its February 10, 1999 response,<2> the agency concluded that it had
not breached the settlement agreement, stating that �a corrected SF-50"
had been forwarded to the Arapaho/Roosevelt personnel office and that,
in any case, there was nothing in the settlement agreement concerning
the SF-50. The response also indicated that, as the agreement placed
complainant in a position at the Arapaho/Roosevelt National Forest
and agreed to pay him $5,000 in lost wages, the personnel officers
at White River and Arapaho/Roosevelt were advised about the agreement
on a �need-to-know� basis, as were national agency officials keeping
record of the agreement. Finally, by letter to the agency dated July
6, 1999, complainant again claimed that the terms of the agreement had
been revealed, and submitted an affidavit to the agency from the Forest
Supervisor at Arapaho/Roosevelt, which stated that he was aware that
complainant had been hired �as part of an EEO settlement.�
In the instant case, we find that complainant has not shown that
the agency has breached the settlement agreement. First, the
settlement agreement states that the �terms of the agreement were to
remain confidential.� The agreement, however, makes no reference
to complainant's SF-50 or the alleged comments on it. Therefore,
disclosure of that document cannot be construed as revealing the terms
of the settlement. Moreover, complainant has not shown that the terms of
the agreement were revealed to any agency official without a need to know
the information to perform their official duties. Although complainant
points to the Arapaho/Roosevelt Forest Supervisor's statement that he
knew complainant had been hired as part of an EEO settlement, he has
not shown that the actual terms of the agreement were revealed to the
Forest Supervisor, or that if they were, that the Supervisor did not
need to know that information to carry out his responsibilities as the
chief management authority of the Arapaho/Roosevelt National Forest.
Complainant has thus failed to show that terms of the settlement agreement
were revealed contrary to the confidentiality provision of the agreement.
Accordingly, for the reasons set forth herein, the agency's decision
finding that the settlement agreement had not been breached is 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 11, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On September 2, 1998, complainant filed a complaint concerning his
removal that is presently before the Commission on appeal (EEOC Appeal
No. 01A05949).
2We note that the agency response was not sent directly to complainant at
the time it was issued and was eventually forwarded to complainant without
appeal rights to the Commission. For this reason, we find complainant's
July 29, 1999 appeal timely.