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).