0120083292
09-18-2008
Rose M. Matthews, Complainant, v. Elaine L. Chao, Secretary, Department of Labor, Agency.
Rose M. Matthews,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120083292
Agency Nos. CRC 01-04-130, CRC 02-04-083
DECISION
Complainant filed an appeal with this Commission on July 18, 2008,
alleging that the agency had breached a settlement agreement.
The May 20, 2003 settlement agreement provided in pertinent part:
7. It is further agreed that the Agency will not retaliate against
[c]omplainant in any way, because of any protected activity she has
engaged in including the filing of the complaints of discrimination at
issue here, or because of this Settlement Agreement or any provision
thereof.
8. Should [c]omplainant believe that she has been retaliated against
as a result of her [c]omplaints of discrimination, or because of this
Settlement Agreement, [c]omplainant may report said information regarding
the alleged retaliation to the Regional Administrator, United States
Department of Labor, Occupational Safety and Health Administration
[OSHA] in Atlanta, Georgia and/or to the Regional Civil Rights Officer.
Complainant also retains the right to seek enforcement before the Equal
Employment Opportunity Commission of any provision of this Settlement
Agreement including the [a]gency's obligation not to retaliate against
[c]omplainant.
The settlement agreement also provided that complainant would receive
a salary step increase.
On appeal, complainant asserts that she was denied the opportunity to
change teams within the Atlanta Area Office; denied a transfer to the
Atlanta East OSHA office in Tucker, Georgia; removed from flexiplace on
March 27, 2008, without any explanation; and subjected to harassment
and hostility. She states that she was directed by the EEO office to
seek EEO counseling and that she did so on May 16, 2008, but to no avail.
She alleges that she discussed her claims of discrimination with the Chief
of the Office of Civil Rights (Chief) and that she was informed that she
needed to file an informal complaint because her claims constituted new
allegations of discrimination. Complainant asserts that she disagreed
with the Chief's conclusion because she felt that the agency's actions
were a result of retaliation. Complainant indicates that she filed a
union grievance.
The record contains an electronic mail message, dated March 27, 2008,
from complainant to her supervisor, the Area Director of the OSHA
Atlanta-West Area Office and a union official in which she stated that she
was reiterating that the agency had breached the settlement agreement.
The record does not reveal whether the agency issued a written decision
responding to complainant's allegations of breach of the settlement
agreement. The record does contain an electronic mail message from the
agency, dated July 14, 2008, acknowledging that complainant filed an
informal complaint on May 20, 2008, and informing complainant that an
EEO Counselor will "promptly proceed with the required fact-finding of
the issues presented in [complainant's] informal complaint." Another
electronic mail message from the agency, dated July 15, 2008, in response
to a query from complainant, informed complainant that subsequent acts
of discrimination were processed as separate complaints and required
initiating the EEO process.
EEOC Regulations 29 C.F.R. �� 1614.504(a), 1614.504(b) provide in
pertinent part that if complainant believes that the agency has failed
to comply with the terms of a settlement agreement, complainant shall
notify the EEO Director, in writing, of the alleged noncompliance within
30 days; that the agency shall resolve the matter and respond to the
complainant, in writing; and that if the agency has not responded to
complainant in writing, or if complainant is not satisfied with the
agency's attempt to resolve the matter, complainant may appeal to the
Commission for a determination whether the agency has complied with the
terms of the settlement agreement or decision. Complainant may file
such an appeal within 35 days after complainant has served the agency
with the allegations of noncompliance, but must file an appeal within
30 days of her receipt of the agency's determination.
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.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996).
Here, we find that complainant is alleging new incidents of
discrimination. This Commission has held that a complaint which
alleges reprisal or further discrimination in violation of a settlement
agreement's "no reprisal" clause, is to be processed as a separate
complaint and not as a breach of settlement. See 29 C.F.R.� 1614.504(c);
Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990).
Accordingly, the Commission finds no breach of the settlement agreement.
Further, the record indicates that complainant has initiated processing
on the new incidents as a separate complaint.
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
September 18, 2008
__________________
Date
2
0120083292
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083292