01971196
03-17-1999
John T. Schaefer, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
John T. Schaefer v. Department of Transportation
01971196
March 17, 1999
John T. Schaefer, )
Appellant, )
)
v. ) Appeal No. 01971196
) Agency No. DOT-2-930253
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
Appellant timely filed an appeal with this Commission from the final
decision of the agency dated October 11, 1996, in which the agency
determined that appellant's claim involving an alleged settlement breach
should be processed as a separate complaint. The appeal is accepted
by the Commission in accordance with the provisions of EEOC Order
No. 960.001.
Based on a review of the record, we find that the agency properly
processed appellant's claim as an allegation of new acts of
discrimination, rather than as a breach of settlement agreement
allegation. EEOC regulation 29 C.F.R. �1614.504 provides that if a
complainant believes that the agency has failed to comply with the
terms of a settlement agreement, he may request that the terms of
the agreement be specifically implemented, or, alternatively, that
the complaint be reinstated for further processing. However, the
Commission has held that a complaint which alleges reprisal or further
discrimination in violation of a settlement agency's "no reprisal"
clause, is to be processed as separate complaints and not as a breach
of settlement. Bindal v. Department of Veterans Affairs, EEOC Request
No. 05900225 (August 9, 1990); 29 C.F.R. �1614.504(c). Accordingly,
we find insufficient evidence to conclude that the agency has violated
the settlement agreement.
In addition, we note that appellant's settlement breach claim asserts
allegations that are the same claims pending before this Commission
in Agency Case No. 4-95-115, EEOC Appeal No. 01973394. Specifically,
appellant alleges that his supervisors have failed to provide work place
accommodations, have exacerbated his injuries by assigning work outside
of his physical disability restrictions, and have denied him access to
the Alternative Dispute Resolution Process. Pursuant to EEOC regulation
29 C.F.R. �1614.107(a) these claims are dismissed. Accordingly, we AFFIRM
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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.
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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.F.R.). 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 17, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations