01A01882_r
05-22-2001
Robin Olebara, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Robin Olebara v. Department of the Treasury
01A01882
May 22, 2001
.
Robin Olebara,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A01882
Agency Nos. TD901077
TD921125
TD921126
DECISION
Complainant filed a timely appeal with this Commission regarding alleged
breach of the terms of a May 19, 1995 settlement agreement into which
the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement was reached as a resolution to a civil action
(93-1592) in the United States District Court for the District of Columbia
and provided, in pertinent part, that:
(8) On the effective date of this settlement, [complainant] shall withdraw
any discrimination grievances, charges of complaints filed by
or on behalf of herself against [the agency]
(11) The settlement agreement shall be interpreted, enforced and governed
under the laws
of the District of Columbia.
By letter dated June 10, 1999, complainant alleged that the agency
breached the settlement agreement by engaging in acts of reprisal.
In a letter dated July 28, 1999, the agency found that the claims of
reprisal should be filed as a separate complaint, rather than as an
alleged settlement agreement breach. Moreover, the agency noted that
because �. . . the original claim was settled in the judicial process, the
District Court may have jurisdiction over enforcement of the agreement.�
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996).
The Commission has held that it will not entertain a claim that the
an agency breached a civil action settlement agreement. In these
instances, the Commission has found that the complainant's claims should
be raised in a different forum such as a United States District Court.
Gonzalez v. Secretary of the Treasury, EEOC Request No. 01966736 (October
10, 1997). Here, the settlement agreement was settled in consideration
of a civil action, in a federal court, with retention of enforcement
jurisdiction contained in its terms under provision (11). We note,
moreover, that in his June 10, 1999 correspondence to the agency,
complainant's attorney states that the settlement agreement of May 19,
1995, resolved three prior EEO cases �which had reached the court stage.�
Therefore, we find that the breach claim by complainant does not state a
matter that is actionable in the administrative EEO process. See Jones
v. Department of the Treasury, EEOC Request No. 05940888 (June 27, 1995).
Finally, we note that apart from alleging breach of the settlement
agreement as articulated in the letter of June 10, 1999, complainant has
apparently pursued the EEO complaint process on the same incident cited as
an alleged breach claim in a separate EEO complaint, which is identified
as Agency No. 99-3159. To the extent that complainant is raising new
allegations of discrimination, we find that pursuing a new complaint is
the proper mechanism for seeking redress. See 29 C.F.R. � 1614.504(c).
Accordingly, we find that the agency decision was proper and is
AFFIRMED.<1>
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
May 22, 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
______________________________
1 We note that apart from alleging breach of the settlement agreement as
articulated in the letter of June 10, 1999, complainant has apparently
pursued the EEO complaint process on the same matter raised in the
breach claim in a separate EEO complaint, which is identified as Agency
No. 99-3159.