U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fidelia F,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120181273 Agency No. ARCARSON18JAN00076 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 5, 2018, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Management and Program Analyst at the Agency's facility in Fort Carson, Colorado. On January 25, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of age (64) and in reprisal for prior protected EEO activity. In its final decision, dated February 5, 2018, the Agency determined that Complainant's complaint was comprised of the following claim: On December 13, 2017, she became aware that a co-worker was allowed to write her own position description but the Complainant had not been offered the same opportunity to resolve and settle EEO complaint ARCARSON16NOV04422. The Agency dismissed Complainant's complaint for failure to state a claim. The Agency reasoned that "[i]n settlement negotiations the Agency offered to transfer [her]. [Complainant] asked if she could help write the position description. [Complainant states] that [she] probably would have settled the EEO complaint, if [she] had been offered the same opportunity in the settlement offer...[S]ettlement negotiations...are to be treated as confidential and privileged in order to facilitate candid interchange to settle disputes informally. To allow Complainant to base a new complaint on a settlement offer would defeat this purpose." The instant appeal followed. On appeal Complainant reiterates that in an effort to resolve her prior EEO complaint an Agency official (A1) offered her another position. Complainant states that when she asked if she could have input into writing the position description A1 told her "no." Complainant asserts A1 allowed a friend of his to write her position description for a new position. In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. ANALYSIS AND FINDINGS We find that the Agency properly dismissed Complainant's complaint for failure to state a claim. We note that Complainant's instant complaint concerns the Agency's attempts to resolve informally a prior EEO complaint. In an attachment to her instant formal complaint, Complainant states "[i]n an attempt to resolve my [prior] EEO complaint, [A1] and [a named Agency attorney] offered to transfer me to [another position] as a possible resolution." Complainant states that when she asked A1 if she could help write the position description, A1 responded "no." Complainant asserts that she probably would have settled her prior EEO complaint if she was given the same opportunity as a co-worker to write her own position description. A settlement offer does not give rise to a viable allegation. Such offers do not adversely affect a term, condition, or privilege of employment. Further, settlement negotiations, including any statements and proposals, made therein, are to be treated as confidential and privileged in order to facilitate candid interchange to settle disputes informally. To allow complainant to base a new complaint on a settlement offer would defeat this purpose. See Gribcheck v. U.S. Postal Serv., EEOC Appeal No. 01A12030 (Feb. 14, 2002). Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations May 29, 2018 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120181273 4 0120181273