Undria P. Dotson, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 15, 2000
01996565 (E.E.O.C. Nov. 15, 2000)

01996565

11-15-2000

Undria P. Dotson, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Undria P. Dotson v. Department of Veterans Affairs

01996565

11-15-00

.

Undria P. Dotson,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01996565

Agency No. 97-1635

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency, dated July 29, 1999, finding that it was

in compliance with the terms of an August 1998 settlement agreement into

which the parties entered.<1> See EEOC Regulation 29 C.F.R. � 1614.402;

29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that:

(1) the agency would promote [complainant] to Medical Clerk (Relief),

GS-5, Step 1, effective no later than September 1, 1998.

In April 1999, complainant alleged that the agreement had, among other

things, been breached when, in August and September 1998, she was asked

to provide information about her experience. According to complainant,

agency officials, by asking these questions, were in effect asking

her to prove that she was qualified for the Medical Clerk position,

which was contrary to the settlement agreement.<2> In light of

the settlement agreement, complainant viewed the agency's actions

as harassment. The agency, in its final decision, argued that while

the settlement agreement was silent about the issue of qualifications,

personnel officials were obligated to ensure that their records accurately

reflected the qualifications of its employees. Therefore, the agency

concluded that there was no breach of the settlement agreement.

On appeal, complainant, through her attorney, argued that �[t]o require

an employee to qualify for a negotiated position undermines the mediation

and settlement process, thereby fostering litigation.� According to

the attorney, complainant should be able to work at her position without

further harassment concerning her qualifications, awarded compensatory

damages for her mental anguish and suffering, and attorneys fees.<3>

Based on a careful review of the record, we find that complainant

failed to raise her allegation of non-compliance in a timely manner.

EEOC Regulation 29 C.F.R. � 1614.504(a) requires that a complainant

notify the agency EEO Director of the alleged non-compliance within 30

days of when the complainant knew or should have known of the alleged

non-compliance. In the present case, complainant's allegation of breach

was not raised until April 26, 1999. Since the alleged violations

occurred in August and September 1998, we must conclude that complainant

was not diligent in the pursuit of this matter. Accordingly, we find

that her allegation of non-compliance was raised in an untimely manner

and will not be addressed herein.

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

___11-15-00___________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Initially, complainant also maintained that, although she was promoted

on August 16, 1998, the effective date of her pay increase did not occur

until September 8, 1998. On appeal, complainant's attorney withdrew

this contention.

3We note that Commission precedent provides that complainants are not

entitled to damages for breach of settlement allegations. See Kessler

v. USPS, EEOC Request No. 05970446 (February 26, 1999).