0520110701
12-07-2011
Victor Ziegler, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Victor Ziegler,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Request No. 0520110701
Appeal No. 0120101550
Agency No. CIV044098LLP
DENIAL
Complainant timely requested reconsideration of the decision in Victor
Ziegler v. Department of the Interior, EEOC Appeal No. 0120101550 (August
8, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
In the appellate decision, the Commission dismissed Complainant’s
complaint of settlement breach because Complainant had failed to notify
the Agency’s EEO Director regarding the breach allegation. Consequently,
the appeal was found to be premature. The Commission also found that
this matter was outside of our jurisdiction because the settlement was
reached before the Merit Systems Protection Board (MSPB) and the MSPB
had the responsibility to enforce the agreement.
REQUEST FOR RECONSIDERATION
In the request for reconsideration, Complainant maintains that the
Commission failed to address his ADEA claim. He maintains that the Agency
did not pay him or offer him compensation for waving his ADEA claims
in his two pending EEO Cases in the October 15, 2008, MSPB settlement
for his appeals.1 Complainant contends that a mistake occurred and
cases that were not intended to be included in the settlement agreement
were placed in the global dismissal within the settlement agreement.
He maintains that the EEOC had jurisdiction to evaluate his ADEA claims
that were mistakenly included in the settlement agreement.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The Commission finds that Complainant failed to show that
the appellate decision involved a clearly erroneous interpretation
of material fact or law, or that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
Agency. We find that pursuant to 29 C.F.R. 1625.23(b), an employee may
waive claims and agree not to bring suit on any claims under the ADEA,
but cannot surrender the right to challenge the validity of the waiver
or covenant. In this case, we find that the previous decision simply
instructed Complainant to submit his claim of breach to the Agency in
order for the Agency to have an opportunity to respond. As submitted,
his appeal here was premature. Accordingly, the decision in EEOC Appeal
No. 0120101550 remains the Commission's decision. There is no further
right of administrative appeal on the decision of the Commission on
this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
____12/7/11______________
Date
1 The MSPB issued a decision on June 28, 2011, finding that Complainant
was within his rights in seeking to challenge the validity of the ADEA
waiver before the EEOC, and found that he was not obligated to tender
back the consideration he was paid in order to do so.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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