01a44504_r
10-29-2004
Arthur Newmark, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Arthur Newmark v. Department of Veterans Affairs
01A44504
October 29, 2004
.
Arthur Newmark,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44504
Agency No. 200H-0642-2004102365
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds
of failure to state a claim. On May 16, 2004, complainant filed a formal
EEO complaint wherein he claimed that he was discriminated against on
the bases of his age (52) and in reprisal for his previous EEO activity
under the Age Discrimination in Employment Act when on March 12, 2004,
the agency would not place his rebuttal to a negative proficiency rating
in his official personnel file. Complainant claimed that the agency's
refusal constituted a breach of a settlement agreement. As a remedy,
complainant requested that the agency adhere to the settlement agreement
and insert his rebuttal in his official personnel file.
The record reveals that on October 17, 2003, complainant and the agency
entered into a settlement of a civil action filed by complainant.
A provision in the settlement agreement states in relevant part:
Within ten (10) calendar days after counsel for [Complainant]
receives the Settlement amount, [Complainant] may submit a concise
written response/rebuttal of his proficiency report for the period
March 31, 1996 to March 31, 1997 to . . . Director, [Agency] Medical
Center of Philadelphia. [Complainant] shall also submit a copy of said
response/rebuttal to counsel for Defendants at that time. [Agency] will
cause to be filed [Complainant's] response/rebuttal in his Official
Personnel Folder.
The agency determined in its final action that the complaint failed
to state a claim since jurisdiction over this matter resides with the
United States District Court for the Eastern District of Pennsylvania.
The agency further determined that the complaint represents a collateral
attack on a decision made in and under the United States District Court
for the Eastern District of Pennsylvania. Upon review of complainant's
appeal, we observe that complainant states that he is not seeking to
attack a decision, but rather enforce an agreement. It is evident
that the agreement to which he refers is the settlement agreement that
resolved the civil action. The Commission finds that enforcement of this
settlement agreement should be pursued through the United States District
Court for the Eastern District of Pennsylvania and not through the EEO
administrative process. Therefore, we find that the Commission does
not have jurisdiction to enforce the civil action settlement agreement.
Accordingly, the agency's decision dismissing the complaint on the
grounds of failure to state a claim is hereby 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
October 29, 2004
__________________
Date