01A33222_r
11-18-2003
Cosmo Palomba, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Cosmo Palomba v. General Services Administration
01A33222
November 18, 2003
.
Cosmo Palomba,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A33222
Agency No. PBS-10-PORT-0314
DECISION
Complainant appeals to the Commission from the agency's April 17, 2003
decision dismissing his complaint. Complainant alleges discrimination
on the bases of religion, national origin, sex, and reprisal when in
December 1995, he was threatened with removal and his union representative
in collaboration with agency officials forced/coerced him into entering
into a settlement agreement with the agency that required him to withdraw
his existing EEO complaint activity and retire. The agency dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(7), for
failure to cooperate.<1>
The Commission finds that complainant's complaint is properly dismissed
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
An allegation that one was coerced into entering a settlement agreement
does not state an independent claim of discrimination. Complainant is
challenging the formation of a settlement agreement entered into on
December 29, 1995. Complainant did not raise this claim regarding
coercion until January 14, 2003. Thus, complainant waited more than seven
years to claim that he was coerced into entering the settlement agreement.
This delay is of such length that such a claim is barred by the doctrine
of laches. Therefore, we will not set aside the settlement agreement.
The agency's decision dismissing complainant's complaint is AFFIRMED
for reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
November 18, 2003
__________________
Date
1Complainant raised other claims in his
complaint which were previously dismissed and are not being challenged
on appeal.