0120121388
08-17-2012
Leopold E. Wetula, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Leopold E. Wetula,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120121388
DISMISSAL OF APPEAL
By Notice of Appeal filed with the Equal Employment Opportunity Commission (EEOC) on February 7, 2012, Complainant claimed that the Agency breached a May 5, 2009, settlement agreement between Complainant and the Agency. For the following reasons, we DISMISS Complainant's appeal.
On May 5, 2009, Complainant and the Agency entered into an agreement settling Complainant's March 18, 2009, EEO complaint. Paragraphs (4) and (5) of the agreement stated that the Agency would initiate a "gap analysis" to define the differences between the Agency's GS-13 and GS-14 positions and that Complainant and his supervisor would work together to develop opportunities for Complainant to demonstrate his capabilities for promotion to a GS-14 position.
Subsequently, in a September 20, 2010, letter to an Agency EEO Specialist, Complainant alleged that the Agency had breached the agreement. The Agency issued a February 22, 2011, final decision (FAD) concluding that the Agency did not breach and had complied with the May 5, 2009, settlement agreement. The FAD expressly addressed the gap analysis and work opportunities matters.
By Notice of Appeal postmarked May 10, 2011, Complainant appealed the Agency's February 2011 FAD to the EEOC. The EEOC dismissed the appeal as untimely filed. Wetula v. Dep't of Transportation, EEOC Appeal No. 0120112905 (Nov. 2, 2011), req. for reconsid. denied, Wetula v. Dep't of Transportation, EEOC Request No. 0520120165 (May 24, 2012).
In a December 15, 2011, e-mail to the Agency EEO Specialist, Complainant sought to file a complaint alleging a continuing breach of the May 2009 settlement agreement "for the period September 20, 2010, until the present." He alleged that "the core terms of the Mediation Agreement, including paragraphs (4) and (5), have not been satisfied." The Agency responded with a December 20, 2011, letter stating that it had addressed Complainant's breach claim in the February 2011 FAD and had administratively closed the matter. The letter noted that EEOC had dismissed Complainant's appeal of the FAD and advised Complainant to refer to the EEOC decision for his options for pursuing the matter. Complainant replied on December 29, 2011, that the FAD had covered only the period up to his September 20, 2010, complaint and that he was now alleging a breach of the settlement agreement for the period September 20, 2010, to December 15, 2011. By letter dated January 19, 2012, the Agency again stated that it had administratively closed the matter and again advised Complainant to refer to the EEOC decision for his options.
In the instant appeal, Complainant argues that this matter is distinct from the September 20, 2010, complaint because it addresses a breach occurring from September 20, 2010, through December 15, 2011. He asserts that his 2010 complaint addressed breaches that occurred prior to September 20, 2010. Complainant also asserts that the Agency failed to satisfy paragraphs (4) and (5) of the agreement. In reply, the Agency argues that Complainant's claim that the Agency breached the settlement agreement was adjudicated in the prior complaint.
The Commission finds that the instant matter involves the same claim of settlement breach that was raised and adjudicated previously. The February 2011 FAD found that the Agency had not breached the May 2009 settlement agreement, and Complainant failed to appeal the FAD in a timely manner. Complainant may not resurrect his claim of a settlement breach by framing his allegation in terms of a different time period. The passage of time does not give rise to a new claim regarding the same paragraphs of the same settlement agreement. Accordingly, Complainant's appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 17, 2012
Date
2
0120121388
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013