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