Wanda Liles, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01a00318 (E.E.O.C. Mar. 29, 2000)

01a00318

03-29-2000

Wanda Liles, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Wanda Liles, )

Complainant, )

)

v. ) Appeal No. 01A00318

) Agency No. 940628

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

____________________________________)

DECISION

On October 5, 1999, complainant filed a timely appeal with this

Commission from a final decision (FAD) by the agency dated October 5,

1999, finding that it was in compliance with the terms of the November 2,

1995 settlement agreement into which the parties entered.<1> See 64

Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �

1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at

29 C.F.R. � 1614.405).

The complainant, by letter dated March 31, 1998, claimed that the agency

breached two clauses of the settlement agreement she and the agency

entered into on November 5, 1995. The clauses claimed to be breached,

in pertinent part, are as follows:

The agency agrees to document the accommodation complainant has been

given to allow her to continue with her present duties or other

reasonable accommodated duties. This documentation will include

appropriate revision of complainant's position description.

Complainant and the agency hereby certify that they both understand

the terms of this agreement are to remain confidential and not be

divulged, publicized, or communicated to other persons without the

written consent of complainant and the USDA.

In its October 5, 1999 FAD, the agency, in essence, concluded that it

did in fact breach both clauses, but the breaches were not material and

since the agency has taken corrective action, complainant is not entitled

to anything. Specifically, the agency notes, that an activity report,

generated by management, identified complainant, by name, as being

injured, but this action was corrected and complainant was apologized

to and ensured that it would not happen again. In addition, the agency

admits to failing to change complainant's position description, but since

she was performing the full scope of her job, the description did not

need to be changed. Moreover, the agency argues that complainant also

breached the agreement by not notifying the EEO director of the agency's

breach within thirty days of its occurrence. The record reflects that

complainant was aware of the breach of confidentiality on February 23,

1998, when she received a letter of apology. With regards to the issue

of complainant's position description, the record is silent as to when

she found out it was not changed to reflect her accommodation.

EEOC regulations require that complainants notify the EEO Director, in

writing, of any alleged noncompliance with a settlement agreement within

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

noncompliance. The agency must then resolve the matter and respond to

complainant, in writing. See 64 Fed. Reg. 37,644, 37,660 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. � 1614.504). In this

case, it is clear that complainant did not contact the EEO director within

thirty days of finding that the agency divulged confidential information

contained within the settlement agreement. Furthermore, with regards to

the issue of altering complainant's position description, the Commission

finds that complainant should have known of the noncompliance long before

she initiated contact with the EEO director on March 31, 1998, since the

agreement was entered into in November 1995. Accordingly, with respect

to both issues of breach, the Commission finds that complainant failed

to timely contact the EEO director pursuant to 29 C.F.R. � 1614.504.

Even assuming arguendo, that complainant did in fact initiate timely

contact with the EEO director, the agency, has cured its breach and

is now in compliance with the agreement. Accordingly, the Commission

hereby AFFIRMS the decision of the agency.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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

(R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

March 29, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

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 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at WWW.EEOC.GOV.