0120080712
05-15-2008
Nuwanna O. Franklin, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Nuwanna O. Franklin,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080712
Agency No. ARMYMCCOY04JUN0070
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 17, 2007, finding that it
was in compliance with the terms of the November 23, 2004 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that it would:
(3a) Reaffirm the DA 7222-1, Senior System Civilian Evaluation Report
Support form, as amended effective May 2, 2004, as representing mutual
agreement between [complainant] and [agency official] to clearly and
unambiguously articulate the reasonable expectations by the latter of
the former going forward with respect to her succeeding rating period
beginning in November 2004. [Complainant] will thereby be afforded the
opportunity to perform her duties and responsibilities in accordance
with her position description as defined therein;
(3c) [Complainant] has unsubmitted requests for civilian compensation,
but does acknowledge that she is due no outstanding payment for civilian
compensation at this time. She attests that she will submit her accrued
request for consideration upon execution of this agreement.
By letter to the agency dated June 1, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to provide her with a Senior System
Civilian Evaluation Report as stated in provision 3a. Complainant also
alleges that she has not been compensated in accordance with provision
3c of the agreement.
In its October 17, 2007 FAD, the agency concluded that complainant's
claim of breach was untimely filed. The agency found that complainant
knew or should have known of the agency's alleged noncompliance as
early as December 2004 concerning provision 3b and June 2005 regarding
provision 3c.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement, the complainant shall notify
the EEO Director, in writing of the alleged noncompliance within 30
days of the date when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the settlement agreement be specifically implemented, or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
In the instant case, we find that complainant's allegation of breach
is untimely and that she did not follow proper procedures in alleging
breach of the agreement. In accordance with EEOC Regulation, complainant
was obligated to contact the agency's EEO Director in writing of the
alleged noncompliance within 30 days. The record indicates, however,
that complainant knew about the agency's noncompliance since December
2004 when she began inquiring "two to three times" each month for three
months concerning her senior evaluation report and since 2005, when she
was told that she would be compensated in accordance with the agreement.
According to the record, complainant contacted the EEO Director by letter
dated June 1, 2007regarding her breach claims.
The Commission has held that individuals using the EEO process must
act with due diligence in the pursuit of their claims or the doctrine
of laches may be applied. See Odel v. Department of Health and Human
Services, EEOC Request NO. 05901130 (December 27, 1990). "The doctrine
of laches is an equitable remedy under which an individual's failure
to diligently pursue their legal remedies can bar their claims." Id.
Regarding complainant's breach allegations concerning provisions 3b and
3c, we find that the doctrine of laches is applicable. Here, complainant
waited 3 years to challenge the settlement agreement. We therefore,
determine that complainant failed to diligently pursue her breach claims
and they are barred as untimely raised.
Accordingly, for the reasons set forth above, the agency's final decision
dismissing the complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 15, 2008
__________________
Date
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0120080712
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080712