01A24905_r
09-08-2003
Alvin R. Rose, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Alvin R. Rose v. Department of Veterans Affairs
01A24905
September 8, 2003
.
Alvin R. Rose,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24905
Agency No. 98-136
DECISION
On July 17, 2002, complainant filed an appeal with this Commission,
claiming that the agency was in breach of a March 30, 1999 settlement
agreement.
Paragraph 2a of the settlement agreement provided that the agency was
�[t]o disburse monies in the amount of $55,000 to complainant for any
and all damages he has affirmed that he has incurred that led up to the
filing of this complaint.�
On appeal, complainant alleged that the agency was in breach of the
settlement agreement when the agency reported on a Form 1099 submitted to
the Internal Revenue Service (IRS) that complainant had received $55,000
from the agency. Complainant also asserted that the $55,000 was payment
for �incurred damages,� that the payment was intended to be tax free,
and that the agency was to pay all taxes on the $55,000.
In its February 12, 2003 decision, the agency determined that complainant
failed to provide the agency with timely notice of the alleged breach.
The agency noted that complainant received IRS Form 1099 in the year
2000, but waited until July 2002 to raise his allegation of breach.
The agency also stated that even if the notice of alleged breach was
timely, the agency did not breach the settlement agreement, noting, among
other things, that there was no provision in the settlement agreement
regarding taxes, that it was the agency's intention that complainant
be responsible for all tax liability, and that the agency had indicated
that the $55,000 was payment for compensatory damages.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, the complainant shall notify the EEO Director
in writing of the alleged noncompliance within 30 days of the alleged
noncompliance. EEOC Regulation 29 C.F.R. � 1614.504(b) further provides
that the agency shall resolve the matter and respond to the complainant
in writing. If the agency has not responded to the complainant 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. The complainant may file such an appeal
within 35 days after he has served the agency with the allegations of
noncompliance but must file an appeal within 30 days of his receipt of
the agency's determination.
The record contains a copy of a check dated April 23, 1999, which was
issued to complainant by the agency in the amount of $55,000. The record
also contains a Form 1099 for Miscellaneous Income for the tax year
1999 which the agency issued to complainant. The $55,000 is identified
thereon under item 7 as nonemployee compensation. The Form 1099 also
contains instructions to the recipient indicating that the amount shown
may or may not be taxable but that if the amount was taxable, it had to
be reported on the individual's tax return, schedule C of Form 1040.
The agency issued a decision finding no breach of the agreement.
Complainant first alleged breach in July 2002. We find, however,
that complainant knew or should have known of the alleged breach once
he received the 1999 Form 1099. Complainant was therefore required to
make his allegation of breach within 30 days of the date he received the
Form 1099. Accordingly, when complainant alleged breach in July 2002,
his allegation was untimely. Even if complainant did timely raise his
breach claim, we find that complainant has failed to show that the agency
breached the agreement.
Accordingly, the agency's decision finding no breach of the settlement
agreement is AFFIRMED.
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
September 8, 2003
__________________
Date