Daniel Gresham, III, Complainant,v.R. L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 1, 2003
01A34472 (E.E.O.C. Dec. 1, 2003)

01A34472

12-01-2003

Daniel Gresham, III, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.


Daniel Gresham, III v. Department of the Army

01A34472

December 1, 2003

.

Daniel Gresham, III,

Complainant,

v.

R. L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A34472

Agency No. AVHEPI0008A0140

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated January 8, 2003, finding that it was in

compliance with the terms of the September 22, 2000 settlement agreement

into which the parties entered.

The settlement agreement provided, in pertinent part, that:

The harassment will cease immediately;

That there be no retaliation against [complainant], nor his job status

be put in jeopardy by either unfair supervisor evaluations or unfair

treatment as a result of filing the EEO complaint.

. . . .

By electronic mail messages to the agency dated November 13, 2002, and

November 14, 2002, complainant alleged that the agency was in breach

of the settlement agreement, and requested that the agency reinstate

his complaint. Specifically, complainant alleged that the agency

continued to harass him when a named agency official inquired about

complainant's use of steroids. Further, in a separate electronic mail

message complainant alleged that he had been passed over for three recent

enforcement promotions and that his request to telecommute for two days

had been denied.

In its January 8, 2003 decision, the agency concluded that complainant's

allegations lacked specificity and that it had performed as agreed under

the terms of the settlement agreement.

On appeal, complainant alleges that the agency has failed to investigate

his claims since he contacted the agency in November 2002.

EEOC Regulation 29 C.F.R. � 1614.504(a) 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.

Upon review, we find provisions (a.) and (b.) of the settlement agreement

are unenforceable. We find that the agency, in merely agreeing to cease

all harassment and reprisal against him, is essentially agreeing to

treat complainant in accordance with existing statutes and regulations,

providing complainant nothing more than that to which he is entitled as

an employee. Therefore, we find that provisions (a.) and (b.) of the

settlement agreement are unenforceable. Inasmuch as these are the only

two provisions of the settlement agreement cited by complainant in his

breach allegations, we find complainant has not shown that the agency

breached the September 22, 2000 settlement agreement.

EEOC regulation 29 C.F.R. � 1614.504 provides that if a complainant

believes that the agency has failed to comply with the terms of a

settlement agreement, he may request that the terms of the agreement

be specifically implemented, or, alternatively, that the complaint be

reinstated for further processing. However, the Commission has held

that a complaint which alleges reprisal or further discrimination in

violation of a settlement agreement's "no reprisal" clause, is to be

processed as separate complaints and not as a breach of settlement.

29 C.F.R. � 1614.504(c).

Upon review, we find that complainant's allegations regarding

non-selection for enforcement positions and post-agreement harassment

incidents are beyond the scope of the present settlement agreement.

We concur with the agency that complainant's allegations of subsequent

acts of harassment and non-selection based on reprisal, must be processed

as new complaints.

Accordingly, complainant is advised that if he wishes to pursue the

reprisal and harassment claims he presented by electronic mail message

in November 2002, he must so notify the agency's EEO office within

15 days after he receives this decision. The Commission advises the

agency that if complainant seeks EEO counseling regarding his new claims

of harassment and reprisal within the above 15-day period, the date

complainant previously contacted a counselor regarding these matters

shall be deemed to be the date of the initial EEO contact. Cf. Alexander

J. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January

16, 1998).

Accordingly, the agency's final decision 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

December 1, 2003

__________________

Date