01993806
03-02-2001
Charlotte Ferguson, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Charlotte Ferguson v. Department of the Treasury
01993806
March 2, 2001
.
Charlotte Ferguson,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01993806
Agency No. 951209
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision on April 12, 1999, finding that it was in compliance with
the terms of its settlement agreement with the complainant. See EEOC
Regulations 29 C.F.R. � 1614.402(a), � 1614.405, and �1614.504.
On July 14, 1997, complainant and the agency entered into a settlement
agreement, wherein complainant agreed to withdraw her formal complaint.
The settlement agreement provided, in pertinent part, that:
The agency will remit to the employee the sum of $1,400.00 (gross) within
sixty (60) days of the date of this agreement. This amount represents a
portion of the backpay to which the employee would have been entitled,
had she prevailed on all her claims against the agency;
The agency will detail the complainant to a GS-12 position in the
Quality Measurement Staff, Examination Division for a minimum period
of 18 months and not to exceed 30 months, effective within 90 days of
the date of this agreement. During this period complainant will be
eligible for promotion on the same basis as any other employee and the
agency will not discriminate or retaliate against the employee during
the detail or at any other time.
By letter to the agency dated February 22, 1999, complainant claimed
that the agency breached the settlement agreement by engaging in repeated
harassment against her. Further, the complainant alleged that the agency
treated her unfairly in retaliation for her previous EEO activity.
In a final decision dated April 12, 1999, the agency found that the
actions asserted by the complainant did not constitute a breach of
the settlement agreement. The agency determined that the complainant's
claims that the agency retaliated against her and harassed her should
be processed as a separate complaint rather than as a breach of the
settlement agreement.
EEOC regulations provide that any settlement agreement that is knowingly
and voluntarily agreed to by the parties, reached at any stage of
the complaint process, shall be binding on both parties. 29 C.F.R. �
1614.504(a). EEOC Regulation 29 C.F.R. � 1614.504(c) states that claims
that subsequent acts of discrimination violate a settlement agreement
shall be processed as separate complaints, rather than as claims of breach
of settlement. Moreover, we have found that a complaint which alleges
reprisal in violation of a settlement agreement's �no reprisal� clause is
to be processed as a separate complaint and not as a breach of settlement.
See Bindal v. Department of Veteran's Affairs, EEOC Request No. 05900225
(August 9, 1990).
Complainant does not allege that the agreement was breached in respect to
its terms guaranteeing backpay and placement in a GS-12 position. Rather,
her claims of reprisal and harassment articulate acts of discrimination
that should be processed as a new, separate complaint. Consequently, the
complainant may elect to pursue such claims as new, separate non-breach
claims of discrimination, pursuant to 29 C.F.R. � 1614.105. Accordingly,
the agency's final decision finding no settlement breach is AFFIRMED.
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
March 2, 2001
__________________
Date