07a60009
12-09-2005
Lynn Byers, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Lynn Byers v. Department of Veterans Affairs
07A60009
December 9, 2005
.
Lynn Byers,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A60009
Agency No. 99-3432
DISMISSAL OF APPEAL
On October 18, 2005, the agency filed an appeal with this Commission
regarding the enforcement of a settlement agreement, dated August 30,
2002, into which the parties entered. On appeal, the agency claims
that complainant breached the settlement agreement. Specifically, the
agency argues that complainant has breached the agreement by �forcing
[the agency] to re-hire [c]omplainant.� The agency requests that the
Commission require complainant to comply with the settlement agreement.
The Commission finds that it does not have jurisdiction over the
agency's appeal. EEOC Regulation 29 C.F.R. �1614.504, et seq., sets
forth the procedures for initiating and processing a complainant's breach
claim alleging an agency's non-compliance with a settlement agreement.
In addition, while the Commission's regulations expressly provide that
a complainant may appeal to the Commission when alleging an agency
breached a settlement agreement, the Commission's regulations do not
expressly provide for an agency to appeal to the Commission when it
alleges that a complainant has failed to comply with a settlement
agreement. Specifically, 29 C.F.R. �1614.504(b) provides, in relevant
part, that �the complainant may appeal to the Commission for a
determination as to whether the agency has complied with the terms of
the settlement agreement or decision.� (emphasis added). Based on
the foregoing, we find that the Commission lacks jurisdiction over the
agency's breach claim. VanDesande v. United States Postal Service,
EEOC Appeal No. 07A50025 (August 31, 2005).
Accordingly, the instant appeal is DISMISSED.
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
December 9, 2005
__________________
Date