Zelma E. McLemore, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01986247 (E.E.O.C. May. 18, 2000)

01986247

05-18-2000

Zelma E. McLemore, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Zelma E. McLemore v. Department of Transportation

01986247

May 18, 2000

Zelma E. McLemore, )

Complainant, )

)

v. ) Appeal No. 01986247

) Agency No. DOT6986080

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

INTRODUCTION

On August 8, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by her on July 23, 1998,

pertaining to her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq.<0> The appeal is accepted in accordance with 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

Whether the agency correctly dismissed complainant's claim for failure

to state a claim.

BACKGROUND

In the complaint, complainant alleged that she was subjected to

discrimination on the bases of race (African American), sex (female),

and reprisal (prior EEO activity) when, during a meeting attended by

complainant, her attorney, and two agency attorneys, in an attempt

to resolve her 1996 EEO complaint, she was told that there were no

GS-6 positions available for her because she was not qualified for

the ones that were open. The agency dismissed the claim, pursuant to

EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)), for failure to

state a claim. This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation � 1614.107(a)(1) provides, in relevant part, that

an agency shall dismiss a complaint that fails to state a claim.

The Commission considers settlement negotiations, including any

statements and proposals made therein, to be confidential and privileged

in order to facilitate candid interchange to settle disputes informally.

To allow complainant to base a new complaint on a settlement offer would

defeat this purpose. Montague v. Department of the Army, EEOC Request

No. 05920321 (September 16, 1997), citing Olitsky v. Spencer Gifts,

Inc., 843 F.2d 123 (5th Cir.), cert. denied, 488 U.S. 925 (1988).

The record reveals that the comment about the GS-6 positions, referred to

by complainant in her claim, was made during such settlement negotiations.

Complainant's complaint, therefore, fails to state a claim.

CONCLUSION

Accordingly, the decision of the agency was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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 (S1199)

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:

05-18-00

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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

01 On 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.