01a00318
03-29-2000
Wanda Liles, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Wanda Liles, )
Complainant, )
)
v. ) Appeal No. 01A00318
) Agency No. 940628
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
On October 5, 1999, complainant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated October 5,
1999, finding that it was in compliance with the terms of the November 2,
1995 settlement agreement into which the parties entered.<1> See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �
1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405).
The complainant, by letter dated March 31, 1998, claimed that the agency
breached two clauses of the settlement agreement she and the agency
entered into on November 5, 1995. The clauses claimed to be breached,
in pertinent part, are as follows:
The agency agrees to document the accommodation complainant has been
given to allow her to continue with her present duties or other
reasonable accommodated duties. This documentation will include
appropriate revision of complainant's position description.
Complainant and the agency hereby certify that they both understand
the terms of this agreement are to remain confidential and not be
divulged, publicized, or communicated to other persons without the
written consent of complainant and the USDA.
In its October 5, 1999 FAD, the agency, in essence, concluded that it
did in fact breach both clauses, but the breaches were not material and
since the agency has taken corrective action, complainant is not entitled
to anything. Specifically, the agency notes, that an activity report,
generated by management, identified complainant, by name, as being
injured, but this action was corrected and complainant was apologized
to and ensured that it would not happen again. In addition, the agency
admits to failing to change complainant's position description, but since
she was performing the full scope of her job, the description did not
need to be changed. Moreover, the agency argues that complainant also
breached the agreement by not notifying the EEO director of the agency's
breach within thirty days of its occurrence. The record reflects that
complainant was aware of the breach of confidentiality on February 23,
1998, when she received a letter of apology. With regards to the issue
of complainant's position description, the record is silent as to when
she found out it was not changed to reflect her accommodation.
EEOC regulations require that complainants notify the EEO Director, in
writing, of any alleged noncompliance with a settlement agreement within
30 days of when complainant knew or should have known of the alleged
noncompliance. The agency must then resolve the matter and respond to
complainant, in writing. See 64 Fed. Reg. 37,644, 37,660 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.504). In this
case, it is clear that complainant did not contact the EEO director within
thirty days of finding that the agency divulged confidential information
contained within the settlement agreement. Furthermore, with regards to
the issue of altering complainant's position description, the Commission
finds that complainant should have known of the noncompliance long before
she initiated contact with the EEO director on March 31, 1998, since the
agreement was entered into in November 1995. Accordingly, with respect
to both issues of breach, the Commission finds that complainant failed
to timely contact the EEO director pursuant to 29 C.F.R. � 1614.504.
Even assuming arguendo, that complainant did in fact initiate timely
contact with the EEO director, the agency, has cured its breach and
is now in compliance with the agreement. Accordingly, the Commission
hereby AFFIRMS the decision of the agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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
(R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
March 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.