01996557_and_01A11913_r
07-13-2001
Allen M. Gates, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Allen M. Gates v. Department of the Navy
01996557, 01A11913
July 13, 2001
.
Allen M. Gates,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 01996557 and 01A11913
Agency No. 98-68438003
DECISION
On August 13, 1999 and January 17, 2001, complainant appealed to the
Commission for determinations as to whether the agency breached the
parties' May 4, 1999 settlement agreement. As both appeals concern the
same May 4, 1999 settlement agreement, the Commission is consolidating
complainant's appeals pursuant to 29 C.F.R. � 1614.606.
The settlement agreement provides, in pertinent part, that the agency
agrees to the following:
Because of Allen M. Gates Religious beliefs, (Seventh Day Adventist) he
will not be scheduled to work from Friday sundown to Saturday sundown.
Management will provide this accommodation unless it causes undue
hardship on behalf of code 300 or the Intermediate Maintenance Facility,
Pacific Northwest.
Letter of Reprimand dated September 16, 1998, expunged from Allen
M. Gates Official Personnel File no later than 30 days from the date of
this Settlement Agreement.
Appeal No. 01996557
Complainant submitted multiple notices of breach to the agency's
Deputy EEO Officer, and requested reinstatement of the settled matters.
The notices were dated May 7, 1999, June 10, 1999, June 23, 1999, and June
29, 1999. Complainant filed an appeal to the Commission on August 13,
1999, prior to the issuance of the agency's October 18, 1999 decision
that the settlement agreement had not been breached. The record is
unclear as to whether complainant waited 35 days after serving the agency
with his claims of noncompliance before filing his appeal; however, the
agency does not oppose complainant's appeal on this ground. Therefore,
the Commission does not consider complainant's appeal to be premature.
See 29 C.F.R. � 1614.504(b).
Complainant claimed that the agency failed to comply with the settlement
agreement when:
On April 30, 1999, complainant received a letter from the Office of
Workers' Compensation Programs (OWCP) requesting that complainant have a
�Physical Capabilities Evaluation� done on complainant's left shoulder.
Complainant claimed that an individual from the agency contacted OWCP
and asked OWCP to request the evaluation.
Beginning on June 7, 1999, an agency employee became unfriendly towards
complainant and gave complainant �the finger� at work. Complainant
informed his supervisor, but his supervisor did not stop the employee's
behavior.
On June 23, 1999, complainant learned that his supervisor said that
complainant would be one of five people to retire in the next five years.
On August 2, 1999, complainant was informed by his supervisor that he
could not lift any tools over ten pounds.
Upon review of the record, we find that the agency did not breach
the settlement agreement. None of complainant's claims of breach,
even if assumed to be true, violated provision 1 or provision 2 of the
settlement agreement. Additionally, on June 17, 1999, complainant signed
a statement acknowledging that the letter of reprimand dated September
16, 1998, had been expunged from his Official Personnel File.
To the extent that complainant attempts to state a claim of reprisal,
the Commission notes that a complaint which claims 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). Complainant should
contact the agency's EEO office if he wants to pursue a separate claim
of discrimination. On October 18, 1999, the agency properly found that
the settlement agreement had not been breached.
Appeal No. 01A11913
By letter to the agency's Deputy EEO Officer dated December 8, 2000,
complainant notified the agency of his claim of noncompliance by the
agency with the May 4, 1999 settlement agreement. Complainant claimed
that on July 18, 2000, he learned that his supervisor disapproved his
leave request and complainant was issued an �AWOL� after taking unapproved
leave on July 17, 2000. Complainant's December 12, 2000 letter to the
Deputy EEO Officer clarified complainant's intent to state a claim of
breach of the May 4, 1999 settlement agreement. By letter dated December
13, 2000, the agency informed complainant that if he had a complaint of
discrimination, he must contact an EEO Counselor, but the agency did
not address whether the settlement agreement had been breached.
Under the Commission's regulations, if the agency has not responded
to the complainant in writing, or if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement or decision.
The complainant must file an appeal within 30 days of his or her receipt
of an agency's determination. See 29 C.F.R. � 1614.504(b). There is
no indication in the file as to the date that complainant received the
agency's determination. Therefore, the Commission considers complainant's
appeal to be timely.
Upon review of the record, the Commission finds that the agency did not
breach the May 4, 1999 settlement agreement between the parties. It is
not a violation of the settlement agreement for complainant's supervisor
to give complainant �AWOL.� Additionally, assuming that complainant
was attempting to state a claim of harassment, in its December 13, 2000
letter the agency properly informed complainant to contact the agency's
EEO office if he wanted to pursue a separate claim of discrimination.
The Commission finds in this consolidated decision that complainant has
failed to show breach of the May 4, 1999 settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 13, 2001
__________________
Date