Patricia E. Bentley, Complainant,v.Gale A. Norton, Secretary, Department of Interior, Agency.

Equal Employment Opportunity CommissionJun 20, 2001
01996355_r (E.E.O.C. Jun. 20, 2001)

01996355_r

06-20-2001

Patricia E. Bentley, Complainant, v. Gale A. Norton, Secretary, Department of Interior, Agency.


Patricia E. Bentley v. Department of the Interior

01996355

June 20, 2001

.

Patricia E. Bentley,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of Interior,

Agency.

Appeal No. 01996355

DECISION

Complainant timely appealed the agency's decision that denied her claim

that the settlement agreement entered into between the parties had

been breached.

BACKGROUND

The record reveals that on July 18, 1997, complainant and the agency

entered into a settlement agreement regarding an informal EEO complaint,

which provided, in pertinent part, that in exchange for complainant

voluntarily withdrawing her complaint:

1.

There

will

be

no

change

in

the

grade

or

title

resulting

from

the

removal

of

law

enforcement

from

your

position.

Your

position

description

will

emphasize

expertise

in

Special

Park

uses.

2. Current intentions are that your supervisory duties will continue

as delineated in the new position description.

...

4. The National Park Service shall not take reprisal against you as

a result of your having filed the complaint of discrimination which

is the subject of this informal resolution agreement. However, any

future complaint which you may file against the National Park Service

or the Department of the Interior will be considered and processed as

a separate action and will in no way undermine or render this informal

resolution agreement as null and void.

By letter dated March 15, 1999, complainant notified the agency that

it had breached the settlement agreement. According to complainant,

the agency breached the first and second provisions of the agreement

on February 17, 1999, when she was assigned duties that are outside her

current position description and she was ordered to perform those duties.

Complainant requested that her complaint be reinstated.

By decision dated July 15, 1999, the agency determined that it complied

with the terms of the settlement agreement. The agency determined that

the assignments/duties at issue are applicable to complainant's position

description as a Supervisory Park Ranger, GS-13. The agency stated that

since part of complainant's duties involve the management, handling,

treatment, storage, transportation and disposal of hazardous materials,

the assignment involving the Environmental Auditing Program falls within

her position description.

On appeal, complainant maintains that her understanding of the settlement

agreement was that her duties were to remain essentially the same, and

that the agreement was breached when her duties were changed. Complainant

stated that the Team Leader wanted to take legislation out of her position

description, and make her responsible for conducting environmental audits

at all facilities before the end of Fiscal Year 2002. According to

complainant, this assignment would have added a tremendous workload and

relieved her of all of her other duties, including special park uses.

Complainant states that she signed the settlement agreement because she

wished to expand some initiatives in special park uses.

In response, the agency asserts that the settlement agreement does not

preclude assigning complainant duties within her position description.

The agency maintains that the assignment involving the Environmental

Auditing Program falls within the purview of the position description

assigned to complainant. The agency notes that in addition to this claim

that the settlement agreement was breached, complainant has also filed

a complaint (FNP-99-062) wherein she addressed her position description.

Upon review of the record, we find that the agency did not breach the

settlement agreement. We note that the settlement agreement stated that

current intentions are that complainant's supervisory duties will continue

as delineated in the new position description. We note that over a year

and a half passed from the execution of the settlement agreement to the

alleged breach. The language of the settlement agreement did not require

that the agency be bound indefinitely to complainant's supervisory duties

as delineated under the position description.

We find that complainant is claiming that the agency engaged in an act

of reprisal subsequent to the execution of the settlement agreement.

Therefore, the alleged action relating to complainant's assignment

involving the Environmental Audit Program should not be considered

a breach of the agreement; rather, such a claim is a claim that a

subsequent act of discrimination violated the settlement agreement.

Such claims should be processed as separate complaints under � 1614.106.

Complainant is advised that if she wants to pursue such a complaint,

then, if she has not already done so, she must promptly contact an

EEO Counselor with regard to the issue of her assignment involving the

Environmental Auditing Program. Accordingly, the agency's decision that

no breach occurred is hereby AFFIRMED.

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

June 20, 2001

__________________

Date