01A33913_r
01-07-2004
Sandra W. Oliver, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Sandra W. Oliver v. Department of the Treasury
01A33913
January 7, 2004
.
Sandra W. Oliver,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A33913
Agency No. TD-01-2040TB
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated May 29, 2003, finding that it was in compliance
with the terms of the October 9, 2001 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
A. Assure that OTS Midwest Region (MWR) Regional Deputy Director [S1]
will work with MWR Consumer Compliance Department (CCD) managers on
departmental performance reviews, significant communication problems,
and sensitivity training, and will attempt to help all parties understand
others' perspectives when significant conflicts arise.
. . .
Establish procedures in MWR CCD to monitor EIC assignments to ensure
reasonable equity in how assignments are made.
. . .
Assure that [complainant] will suffer no retaliation by MWR CCD management
due to filing the subject Equal Employment Opportunity (EEO) complaint,
TD Case Number: 01-2040T.
Offer [S1's] commitment to maintain an open door policy for significant
concerns of MWR CCD staff and management, with assurance that no
retaliation by CCD management will result from discussions with [S1].
Provide training for MWR CCD managers on the performance appraisal
process.
Enroll MWR CCD managers in an 18-month manager training program.
Destroy the Notice of Counseling issued to [complainant] on September
27, 2000.
Issue a notice to MWR CCD management re-confirming OTS policies regarding
the prohibition of any hostile treatment within the workplace.
By letter to the agency dated July 17, 2002, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate her complaint. Specifically, complainant alleged
that the agency failed to implement provisions (2.A.), (2.C.), (2.E.),
(2.F.), and (2.H.) of the settlement agreement. Complainant further
alleged that whether the agency complied with provisions (2.G.), (2.I.),
and (2.J.) of the settlement agreement, was unknown to her.
In its May 29, 2003 decision, the agency concluded that complainant's
notice of breach to the agency was untimely. The agency found that
complainant had received a notice of reduction in force (RIF) dated
March 13, 2002, and that complainant was separated from the agency on
May 17, 2002. Accordingly, the agency reasoned that complainant either
knew or should have known of any alleged noncompliance at the latest,
by May 17, 2002. The agency concluded that complainant's July 17, 2002
notice of alleged breach was beyond the 30 day time limit for timely
notice, as provided by the terms of the settlement 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). Claims of breach must be
raised within 30 days of when complainant knew of should have known of
the alleged noncompliance. 29 C.F.R. � 1614.504(a).
In the instant case, we find complainant's breach notice to the agency
was untimely. While the agreement does not specify a time for the
agency's compliance, we find the agreement imposes on the agency, in
part, a duty to undertake several instructive or corrective measures to
ensure its managers and supervisors receive training and policy guidance
designed to prevent or eliminate discrimination prospectively for a
wide number of employees within a reasonable time from the settlement
agreement's execution. We find that complainant's separation from the
agency in May 2002, served to place complainant in a position, at that
time, whereby she either knew or should have known that the agency had
fully implemented the terms of the settlement agreement or that the
agreement had been breached. Complainant had an obligation to notify
the agency of her belief that breach had occurred, within 30 days of her
separation on May 17, 2002. This, she failed to do. We find, therefore,
that complainant's notice of breach to the agency was untimely.
Claims that a subsequent act of discrimination violated a settlement
agreement shall be processed as a separate complaint and not as a breach
claim. See 29 C.F.R. � 1614.504(c). To the extent that complainant
is attempting to allege breach of the settlement agreement from an act
of retaliation, we note that the record indicates that complainant has
pursued a claim of reprisal concerning her separation from the agency
which is being properly processed by the agency as a separate complaint.
Accordingly, we AFFIRM the agency's determination that complainant's
breach claim was untimely raised.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
January 7, 2004
__________________
Date