01A04523_r
04-25-2002
Donna F. Dunn, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Donna F. Dunn v. Department of the Treasury
01A04523
April 25, 2002
.
Donna F. Dunn,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A04523
Agency Nos. 00-3113, 000017B
DECISION
Complainant filed a timely appeal with this Commission to determine
whether the agency is in compliance with the terms of the February 7,
1995 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) The agency will:
Reassign complainant to a permanent position series/grade 0592/6,
position description #06145 at the Gateway Center. The reassignment
will be effective no later than pay period beginning March 5, 1995.
Reassignment is for the purpose of providing reasonable accommodations
for her medical condition: allergies to dust, paper mites, carpets,
mold, and mildew.
Allow complainant to apply for disability retirement if she is still
unable to work in the area stated in A. above after a 90 day trial
period.
In September 1999, an internal audit of the agency's official personnel
files resulted in a notice being sent to complainant that her service
computation date (SCD) would be adjusted by subtracting time during which
complainant was in nonwork (or furlough) status. By letter to the agency
dated November 20, 1999, complainant alleged that the agency was in breach
of the settlement agreement, and requested that the agency specifically
implement its terms. Specifically, complainant alleged that the agency
failed to keep complainant's SCD as intended by the parties at the time
the settlement agreement was executed.
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.
In the instant case, we note that nothing in the settlement agreement
provides for maintenance of complainant's SCD as if she had received
permanent status prior to 1995. We therefore concur with the agency that
complainant has failed to show that the agency breached the settlement
agreement.
The Commission notes that complainant initially presented the instant
matter as a claim that the agency had, post-agreement, retaliated
against her. Complainant was therefore directed to EEO counseling which
resulted in the assignment of the second agency case number, 00-3113.
It is not clear, however, if complainant still wishes to pursue the
matter of alleged retaliation as a separate complaint of discrimination
under � 1614.106. If complainant wishes to pursue her reprisal claim,
then she should inform the agency's EEO office of her desire to do so
within 15 days of the date this decision becomes final.
Accordingly, we AFFIRM the agency's final decision finding that no breach
of the settlement agreement occurred.
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
April 25, 2002
__________________
Date