0120090336
12-11-2008
Earl Tucker, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Earl Tucker,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120090336
Agency Arbitration Case No. CH 2005 R 0003
DISMISSAL OF APPEAL
Complainant filed an appeal to this Commission regarding the alleged
noncompliance of the agency with a settlement agreement signed on November
9, 2006, in settlement of a grievance filed on his behalf under the
collective bargaining agreement (CBA) between the agency and the American
Federation of Government Employees (AFGE). In his appeal, complainant
claimed that the agency had not complied with the terms of the agreement,
and he appealed to the Commission to order the agency to implement
those terms. Complainant claimed that the Commission had jurisdiction
over the settlement agreement as complainant had alleged a violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. (Title VII) within his original grievance filing.
The Commission has jurisdiction over appeals arising from the grievance
process in limited circumstances. EEOC Regulation 29 C.F.R. � 1614.401(d)
provides that a grievant may appeal the final decision (emphasis added)
of the agency, the arbitrator or the Federal Labor Relations Authority
on a grievance when an issue of employment discrimination was raised in
a negotiated grievance procedure that permits such issues to be raised,
but requires the complainant to proceed under either the grievance or
statutory EEO process, but not both.
The Commission has jurisdiction over appeals arising from claims
of breach of settlement agreements under the regulations found at
29 C.F.R. � 1614.402 and 29 C.F.R. � 1614.504. 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 [29
C.F.R. Part 1614] complaint process, shall be binding on both parties,
and shall be enforceable through notification to the EEO Director.
Under 29 C.F.R. � 1614.402(a), appeals may be filed with the Commission
regarding the agency's determination on a claim of alleged noncompliance
with a settlement agreement signed in the EEO process.
We find that the instant appeal does not satisfy the requirements for
either category of appeal. It is not an appeal from a decision of the
grievance process, an arbitrator or the FLRA. It is not an appeal from a
determination of a noncompliance with settlement breach claim, pursuant to
a settlement signed in the EEO process. An examination of the settlement
agreement signed November 9, 2006 does not reveal any mechanism within
the agreement that gives the EEO office of the agency jurisdiction
for enforcing the agreement at a later date. Although paragraph
1. a. foresees the potential need for "an action regarding compliance
with this agreement," there is no further paragraph which sets forth
any mechanism for obtaining such compliance. In the absence of specific
language placing enforcement within the 29 C.F.R. Part 1614 process, we
find no evidence within the agreement that parties intended that result.
Indeed, it would seem that a settlement agreement signed under the
auspices of a CBA within the framework of an arbitration proceeding
would be enforceable through avenues contained within that CBA.
Therefore, this appeal is DISMISSED for lack of jurisdiction.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
12-11-08
__________________
Date
2
0120090336
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120090336