Lynn Kriegbaum, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 30, 2003
01A30915 (E.E.O.C. Oct. 30, 2003)

01A30915

10-30-2003

Lynn Kriegbaum, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Lynn Kriegbaum v. Department of the Army

01A30915

October 30, 2003

.

Lynn Kriegbaum,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A30915

Agency No. BGAPFO9909J0090

DISMISSAL OF APPEAL

By Notice of Appeal postmarked November 2, 2002, complainant filed an

appeal with this Commission, in accordance with 29 C.F.R. � 1614.504(a),

alleging that the agency failed to comply with the terms of the settlement

agreement reached between the parties on February 19, 2002.

Specifically, complainant argues that the agency failed to comply with

the terms of the settlement agreement which allegedly required submission

of a petition for determination of attorneys fees. Complainant further

argues that her attorney and the agency separately agreed, without her

knowledge, to payment of $4,000 in attorneys fees. Complainant argues

that she never agreed to this amount.

The agency argues, inter alia, that complainant's appeal is untimely.

We agree. Under the Commission's regulations, and as set forth in the

settlement agreement, complainant has thirty days to notify the agency of

a claim of breach. See 29 C.F.R. � 1614.504(a). In this case, we find

that complainant knew of the alleged breach at the latest in March 2002.

Complainant concedes, in her statements on appeal, that she was aware

that the agency issued a check for $4,000 as full and complete payment of

attorney's fees in March, 2002, without the submission of a fee petition.

In addition, the record shows that between March and September, 2002,

complainant sent several emails to the agency indicating that she believed

her attorney was the person who failed to comply with the settlement

agreement rather than the agency. Complainant

did not advise the agency of its alleged non-compliance with the

settlement agreement until September 27, 2002.

We, therefore, find that complainant's September 27, 2002 notification

of the agency's alleged breach untimely. Accordingly, we hereby DISMISS

complainant's appeal for untimeliness.

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

October 30, 2003

__________________

Date