01981055
11-13-1998
John C. Kenoyer, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
John C. Kenoyer v. Department of the Interior
01981055
November 13, 1998
John C. Kenoyer, )
Appellant, )
)
v. ) Appeal No. 01981055
) Agency No. FNP-97-062
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant timely appealed the agency's final decision not to reinstate
his complaints of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. ��1614.504, .402(a); EEOC Order No. 960,
as amended.
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed appellant's
complaint and whether the agency properly found no settlement breach.
BACKGROUND
The record indicates that appellant, a Park Ranger, GS-9, filed two
complaints, Agency Nos. FNP-95-011 and FNP-95-030, on October 13, 1994,
and November 15, 1994, respectively, which were subsequently consolidated
for processing. Therein, appellant alleged that he was discriminated
against based on age (57) and mental disability (emotional and stress
condition) when: on April 11, 1994, the Personnel Officer told him that
the Superintendent would downgrade his position to a GS-7 grade level and
reassign him to a "subject-to-furlough" position if he did not retire;
in May 1994, his position was not upgraded to the GS-11 grade level
via Ranger Futures; and management made no effort to assist, support,
or accommodate him in rehabilitating himself while the Superintendent
gave major consideration to accommodate another park employee.
The agency investigated the subject complaints, and appellant requested
a hearing before an Administrative Judge. Prior to the hearing, the
parties entered into a settlement agreement on November 13, 1996, which
provided, in pertinent part, that: appellant would continue to hold
his GS-9 position; he would be reimbursed for attorney's fees up to
$6,000; his sick leave would be restored; he would be paid a monetary
settlement of $10,000; and his clinically-documented disability would
be accommodated. The settlement agreement was signed by appellant,
his attorney, the Superintendent, and an agency representative.
By letters dated November 20 and 22, 1996, appellant requested the
reinstatement of the prior complaints for a hearing. Specifically,
appellant alleged that he was coerced into signing the settlement
agreement; he was under extreme duress when he signed the agreement;
and he did not even have an opportunity to read the agreement before
signing it.
By letter dated November 27, 1996, the agency responded to appellant
that the agreement was signed by him and his attorney, and it would
remain in full force and effect.
Thereafter, appellant contacted an EEO Counselor on February 5, 1997,
and filed the instant complaint dated April 17, 1997, alleging that he
was discriminated against based on age (over 40) and mental disability
(emotional stress) when:
(1) In the spring of 1994, management officials took concerted actions
to force him to retire;
(2) In the summer of 1994, and fall of 1995, he was provided with
misleading or false sworn testimony given to federal investigators to
cover-up wrong doing by agency officials in his prior complaints, Agency
Nos. FNP-95-011 and FNP-95-030, and his workers' compensation claim,
which had been accepted by the Department of Labor; and
(3) He was coerced into signing the November 13, 1996 settlement
agreement.
On October 17, 1997, the agency issued a final decision dismissing the
allegations in the complaint. The agency stated that the allegations
were, in substance, identical to the allegations raised in appellant's
prior complaints which were investigated and were resolved through the
settlement agreement. The agency indicated that appellant entered into
the settlement agreement knowingly and voluntarily and he was bound by
the terms thereof. The record indicates that appellant retired from
employment with the agency effective November 3, 1997.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.504 provides that any settlement agreement
knowingly and voluntarily agreed to by the parties, reached at any
stage of the complaint process shall be binding on both parties. If the
complainant believes that the agency failed to comply with the terms of
a settlement agreement, the complainant should notify the Director of
Equal Employment Opportunity, in writing, of the alleged noncompliance
with the settlement agreement, within thirty (30) days of when the
complainant knew or should have known of the alleged noncompliance.
The complainant may request that the terms of the settlement agreement
be specifically implemented or, alternatively, that the complaint be
reinstated for further processing from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
In allegation (3), appellant indicated that he was coerced into signing a
settlement agreement. The record indicates that on November 13, 1996,
the parties signed the settlement agreement resolving appellant's
prior complaints, Agency Nos. FNP-95-011 and FNP-95-030. On November
20 and 22, 1996, appellant claimed that he was coerced into signing
the settlement agreement and asked the agency to reinstate the prior
complaints for a hearing. The record indicates that on November 27, 1996,
the agency informed appellant that the settlement agreement was valid,
enforceable and bound by the parties. The agency refused to reinstate
the prior complaints. Appellant, however, did not pursue his allegations
of breach again until February 1997, more than 30 days from the date he
first became aware of the alleged breach, i.e., that the agreement was
purportedly coerced. Therefore, we find that appellant failed to raise
his allegations in a timely manner and the agency properly declined to
reinstate appellant's complaint.
With regard to allegation (1), we find that appellant raised the same
claim, namely, management officials' taking concerted actions to force him
to retire in 1994, in the prior complaints, which were resolved through a
settlement agreement. Thus, we find that the agency properly dismissed
the subject allegation. With regard to allegation (2), we find that it
failed to state a claim, pursuant to 29 C.F.R. �1614.107(a), since it
involved the agency's improper processing of appellant's prior complaints.
The Commission has held that allegations of improper processing do not
state separate processable claims. See Kleinman v. USPS, EEOC Request
No. 05940579 (September 22, 1994); Story v. USPS, EEOC Appeal No. 01965883
(March 13, 1997); EEO MD 110 (4-8). Therefore, we find that the agency
properly dismissed allegation (2) for the reasons set forth herein.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint
for the reasons set forth herein and finding no settlement breach is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Nov. 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations