0120080835
12-10-2008
Willie L. Weaver, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Willie L. Weaver,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120080835
Agency No. 2007-21501-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dismissing his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
On July 26, 2007, complainant contacted the EEO office claiming he was
discriminated against on the basis of reprisal. Informal efforts to
resolve complainant's concerns were unsuccessful. On September 11,
2007, complainant filed a formal complaint.
In its final decision dated October 29, 2007, the agency determined that
complainant's formal complaint was comprised of the following claim:
Were you discriminated against based on reprisal (prior EEO complaint)
when you were notified circa July 18, 2007, by a member of the Southern
Region Legal Counsel Staff that the contents of your settlement agreement
that had been signed on November 8, 2005, had been discussed during an
EEOC hearing and you feel this discussion of your settlement agreement
violated the confidentiality provision of your settlement agreement?
The agency dismissed complainant's complaint for failure to state a claim.
The agency determined that the settlement agreement was not an EEO
settlement agreement since it was not entered into in conjunction with
the EEO process. The agency noted that complainant had not filed an
EEO complaint or contacted an EEO counselor at the time the settlement
agreement was entered into.
Upon review of the record, we find that the parties did not enter
into a binding EEO settlement agreement. In order for there to be
a binding settlement agreement, the agreement must have been entered
into in conjunction with the EEO process. See 29 C.F.R. � 1614.504(a).
The record reveals that complainant had not initiated the EEO process at
the time that the parties entered into the agreement. Complainant does
not claim that he had filed an EEO complaint or contacted an EEO Counselor
at the time the purported agreement was entered into. Therefore, we
find that this matter is not within the purview of the EEO process and
the complaint fails to state a claim.
Accordingly, we AFFIRM the agency's decision dismissing complainant's
complaint for failure to state a claim.
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
December 10, 2008
Date
2
0120080835
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080835