01A05516
12-07-2000
John D. Senander, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
John D. Senander v. U.S. Department of the Treasury
01A05516
December 7, 2000
.
John D. Senander,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A05516
Agency No. 00-4220
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated July 13, 2000, dismissing the instant complaint
on the grounds of failure to state a claim. The agency found that
complainant did not have standing under the Commission's regulations to
claim breach of the March 9, 1998 settlement agreement into which the
parties entered.<1> See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
29 C.F.R. � 1614.405; 29 C.F.R. � 1614.107(a)(1); and 29 C.F.R. �
1614.103(a).
The settlement agreement provided, in pertinent part, that:
(1) The Employee will retire from Agency employment effective May 3,
1998....
(2) The Agency hereby withdraws its proposal [to terminate] letter,
dated November 17, 1997. ....
(3) The Employee will not file any appeal, grievance, complaint, and/or
any other type of legal, equitable, or administrative claim in regard
to his employment with the Agency....
(4) Paragraph 3 does not include ( a pending EEO complaint). ...
(5) The Parties will not disclose the terms of this agreement to
third parties, except to the extent necessary to effectuate such terms
and/or as required by law and/or court or judicial order. ...
(6) ....In the event that the Agency violates any of the terms
of this Agreement, the Employee may take appropriate action, which may
include administrative and/or legal action.
Complainant initiated EEO Counselor contact on March 29, 2000, claiming
that the agency breached the settlement agreement with an unauthorized
disclosure (provision 5 above) so that he was entitled to file a
formal EEO complaint regarding the agency's proposed termination
(provision 6 above). Specifically, complainant claims that in the
course of litigating the EEO complaint which was pending at the time
the settlement agreement was executed, (provision 4 above), the agency
attorney disclosed the settlement agreement to the U.S. District Attorney
representing the agency in Federal District Court in the civil action.
Complainant argues that the disclosure was not ordered by the court,
and not pertinent to the litigation, and therefore constituted a breach
of the settlement agreement.
In its July 13, 2000, final decision, the agency concluded that
complainant had no standing to file the instant complaint. The agency
found that the settlement agreement was not executed to settle either a
formal or informal EEO complaint, such that the matter was not within
the purview of the Commission's regulations. The agency additionally
found that complainant's claim did not fall under the Commission's
regulations because it was more in the nature of a Privacy Act violation,
and also because it constituted a collateral attack on the District
Court proceedings.
Upon review, we find that although complainant contends that he agreed
not to pursue a reprisal claim against the agency in consideration for
the agency executing the settlement agreement, there is no evidence
that complainant initiated the EEO process regarding his proposed
termination prior to executing the settlement agreement. Moreover,
the terms of settlement agreement do not reflect that it was entered
into upon consideration of complainant withdrawing an EEO action.
Rather, the settlement agreement provides that in return for the agency
withdrawing the proposed termination letter (and certain other actions),
complainant agreed to retire by a certain date and to forebear pursuing
future actions against the agency regarding his employment. Therefore,
although the settlement agreement appears to be a valid enforceable
agreement between the parties, we find that the subject settlement
agreement is not within the purview of the Commission's regulations.
Accordingly, we AFFIRM |the agency's decision dismissing the present
matter pursuant to 29 C.F.R. � 1614.107(a)(1).
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
December 7, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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.