01A34472
12-01-2003
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