01991955
11-21-2000
Deborah G. Schwarz, Complainant, v. John C. Wells, Director, Federal Mediation and Conciliation Service, Agency.
Deborah G. Schwarz v. Federal Mediation and Conciliation Service
01991955
November 21, 2000
.
Deborah G. Schwarz,
Complainant,
v.
John C. Wells,
Director,
Federal Mediation and Conciliation Service,
Agency.
Appeal No. 01991955
Agency No.
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2)).<1> The record
shows that on May 20, 1998, the final interview was held concerning the
issues complainant had brought to the attention of the EEO counselor.
The record further shows that during that interview, the EEO counselor
�told [complainant] that even though [she] had the right to file
a complaint, it would be in the best interest of all concerned if
[she] would consider the proposed settlement offer�. On May 26, 1998,
complainant signed the notice of the right to file a formal complaint.
Complainant was advised that her complaint needed to be filed within
15 days of her receipt of the notice. On June 18, 1998, complainant
and the agency signed a settlement agreement. The agreement provided,
inter alia, that both parties �desire to adjust and settle all claims
and disputes between them including, but not limited to, those claims
and disputes arising from [complainant's] employment with FMCS�.
Disputing the validity of the agreement, on July 24, 1998, complainant
filed her formal complaint of discrimination.<2>
On January 6, 1999, the agency issued a final decision dismissing
complainant's July 24, 1998 formal complaint on the grounds that it was
untimely and because it concerned issues already decided by the agency.
On appeal, complainant, through her attorney, emphasizes her contentions
that the June 18, 1998 agreement was not valid and, therefore, cannot
be used to bar her pursuit of her EEO complaint. In response, the
agency contends, inter alia, that complainant failed to file her formal
complaint within the 15-day time limit. The agency also argues that
complainant does not deny that the issues raised in complainant's July
24, 1998 formal complaint �are the very same issues that were meant to
be resolved under the June 18, 1998 settlement agreement�.
The record indicates that on May 26, 1998, complainant signed and
acknowledged receipt of the notice of the right to file a formal
complaint. Complainant was aware of her right to file a formal complaint,
as well as of her obligation to file it within 15 days of her receipt of
the notice. Complainant did not file her formal complaint until July 24,
1998, well beyond the 15-day time limit. Accordingly, the agency's final
decision dismissing the complaint was proper and is hereby AFFIRMED for
the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 21, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We note that complainant filed allegations of breach of the June 18,
1998 agreement, which are presently pending on appeal in EEOC Appeal
No. 01992371.