01994465_r
03-27-2001
Henrietta Coleman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Henrietta Coleman v. Department of Veterans Affairs
01994465
March 27, 2001
.
Henrietta Coleman,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01994465
Agency Nos. 98-0553, 98-0834
DECISION
Complainant and the agency entered into a settlement agreement on March
4, 1998. In November 1998, complainant alleged breach of the agreement.
By decision dated April 9, 1999, the agency found no breach of the
agreement, and complainant appealed to this Commission.
The settlement agreement provided, in pertinent part, that:
(2)(b) The complainant will be allowed to attend the next Medical
Terminology Course offered by Nursing Service Education. Her supervisor
will adjust her tour of duty to accommodate her attendance at this course.
(2)(c) The complainant will be treated with respect and dignity and not
be subjected to reprisal as a result of the filing of this complaint.
Complainant argued that she was excluded from a mail group and denied
options necessary to perform her job duties in reprisal for her prior
EEO activity. Further, complainant asserted that her supervisor refused
to adjust her tour of duty, although she agreed to change the hours for
the morning and night shift secretaries.
In its dismissal, the agency found no breach of the agreement.
Specifically, the agency found that the newly alleged incidents should
be raised with an EEO Counselor as new complaints of discrimination,
but not as claims of breach.
If complainant believes the agency has breach a settlement agreement,
she may request that the agency specifically implement the terms of
the agreement, or reinstate her underlying complaint. See 29 C.F.R. �
1614.504. Complaints alleging violations of a settlement agreement's �no
reprisal� provisions must be processed as separate complaints, and not
as claims of settlement breach. See Parker v. Department of the Army,
EEOC Appeal No. 05960025 (Aug. 30, 1996) (citing Bindal v. Department
of Veterans Affairs, EEOC Request No. 05900225 (Aug. 9, 1990)).
In the present matter, complainant is alleging breach of the agreement's
�no reprisal� provision. The agency correctly instructed complainant to
contact an EEO Counselor concerning these matters. Although complainant
contends that her tour of duty was not changed, the agency denies that
complainant requested any change in tour. Further, complainant never
argues that the agency refused to adjust her tour as provided in provision
(2)(b). Therefore, the Commission finds that this claim also concerns
the �no reprisal� provision of the agreement, and does not constitute a
breach of the agreement. If complainant seeks EEO counseling on these
matters within fifteen days of receiving this decision, then the agency
should consider the date of her claim of breach to be the date of initial
EEO Counselor contact.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
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
March 27, 2001
__________________
Date