0120102095
09-27-2010
Patricia Jackson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Patricia Jackson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120102095
Agency No. HS-06-CIS-000503
DECISION
The Commission accepts Complainant's timely appeal from the final determination by the Agency dated March 22, 2010, finding that Complainant failed to timely raise her allegation of breach of settlement. See 29 C.F.R. � 1614.504(a).
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant failed to raise her allegation of breach in a timely manner.
BACKGROUND
The 2006 settlement agreement at issue herein provides, in pertinent part:
In exchange for [Complainant's] agreement to dismiss her [formal EEO complaint] the Agency has agreed to do the following:
(2b) [Agency] will reestablish [Complainant's] home access to either [the Agency's] CCMail or Outlook email exchange.
By letter to the Agency dated March 6, 2010, received by the Agency on March 11, 2010, Complainant alleged that the Agency was in breach of the settlement agreement, and has continued to subject her to harassment and discrimination.1 Complainant requested that the Agency specifically implement the terms of the settlement agreement. Specifically, Complainant alleged that the Agency failed to provide her with access to the systems she needed to complete her work at home and in the office.
In its March 22, 2010, FAD, the Agency concluded that Complainant failed to raise her allegation of breach in a timely manner. Specifically, the Agency states that Complainant alleges the first occurrence of denied access to the email systems occurred on July 24, 2006, and continued throughout 2007, 2008, and 2009. It is the position of the Agency that Complainant knew or should have known of the alleged noncompliance long before March 6, 2010, and should have raised her allegation of breach at this time.
On appeal, in addition to reiterating her claims of ongoing discrimination and harassment which she stated in her notice of breach, Complainant states that the Agency's decision stating that she was untimely is another attempt by the Agency to subject her to further harassment and discrimination.
ANALYSIS and FINDINGS
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that, if the complainant believes that the agency has failed to comply with the terms of the settlement agreement or decision, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. At this time complainant may request that the terms of the settlement agreement be specifically implemented, or that the complaint be reinstated for further processing from the point processing ceased. Id.
In the instant case, we find that the record reflects that Complainant did not raise her allegations of breach in a timely manner. In Complainant's March 6, 2010, notice of breach, she states that her problems with the Agency's noncompliance began shortly after the case was settled in 2006. Complainant's Notice of Breach, Page 1. It is clear from Complainant's allegations in the notice of breach that she knew the Agency was not in compliance, as she understood it, with the settlement agreement shortly after the settlement agreement was executed. Complainant therefore should have raised her allegation of breach with the Agency's EEO Director at that time. Instead, the record reflects that Complainant did not submit a notice of breach in accordance with 29 C.F.R. � 1614.504(a) until March 6, 2010, which is well beyond the 30-day time limit. Based on the following circumstances, we find that the Agency properly found that Complainant failed to raise her allegation of breach in a timely manner.2
CONCLUSION
After a thorough review of the record, and for the foregoing reasons, the Commission AFFIRMS the agency's final determination finding no breach of the settlement agreement
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 27, 2010
Date
1 The Commission notes that Complainant raises additional allegations in her March 6, 2010, unrelated to the breach of settlement allegation.
2 To the extent that Complainant raises new allegations of discrimination in her breach notice, if she wishes to pursue these allegations she should contact an EEO Counselor within fifteen (15) days of the date she receives this decision. For timeliness purposes, the date of Complainant's initial contact with the EEO Counselor will be deemed the date on which she served her notice of breach on the Agency.
??
??
??
??
2
0120102095
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102095