01A20388_r
02-11-2002
Billy W. Franklin, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Billy W. Franklin v. Department of the Army
01A20388
February 11, 2002
.
Billy W. Franklin,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A20388
Agency No. AWGRFO9805I0160
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 18, 2001, for a determination as to whether
the agency complied with the January 12, 1999 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that the agency
will:
(3)(b) Take all reasonable and necessary steps to change a certain period
of previous details to the grade of GS-13, to indicate a temporary
promotion to that grade for a total of 365 days. The specific time
periods to be changed to indicate these temporary promotions are 11
November 1992 to 16 December 1992, 27 December 1992 to 24 April 1993,
26 April 1993 to 24 July 1993, and 26 April 1994 to 14 August 1994.
By letter to the agency dated August 17, 2001, complainant claimed that
the agency failed to timely comply with the terms of the settlement
agreement, and requested that the agency reinstate his original complaint
for further processing.<1> Specifically, on appeal, complainant asserts
that the settlement agreement requires his temporary promotion to cover
365 days. In February 2000, complainant was notified that he did not
have the required time in grade for the GS-14 vacancy announcement for
which he had applied, ostensibly, 365 days. The four specified time
period changes for the temporary promotions under provision (3)(b) of
the settlement agreement did not give complainant a total of 365 days in
the grade of GS-13. Complainant claims that the agency added 15 days
to his time as a GS-13 in May 2001, which allowed complainant to reach
365 days, but the agency backdated this adjustment to reflect that the
personnel action was approved on February 2, 1999.
In its September 18, 2001 decision, the agency concluded that the
settlement agreement did not provide for the accomplishment of the
agreed terms within a specific time frame, although the agency claims
that it complied with the settlement agreement on February 2, 1999,
when it changed the four periods to reflect temporary promotions to the
GS-13 level.
In the instant case, there is no debate over whether the agency eventually
implemented provision (3)(b) of the settlement agreement. The debate is
over whether the agreement was implemented within a reasonable period of
time, and at what point the agreement was implemented. The Commission
disagrees with the agency's stance that by granting complainant temporary
promotions during the four time frames specified in the agreement,
the agency complied with provision (3)(b) of the settlement agreement.
The agreement requires that the agency �[t]ake all reasonable and
necessary steps to change a certain period of previous details to the
grade of GS-13, to indicate a temporary promotion to that grade for a
total of 365 days� (emphasis added). The agency, however, later granted
complainant an additional 15 days at the GS-13 level, thereby enabling
complainant's aggregate number of days detailed as a GS-13 to reach,
and actually exceed, 365 days. Although on appeal the agency maintains
that the 15 days granted to complainant were only given to complainant
in order to assist complainant in meeting eligibility requirements for
the GS-14 level, the Commission finds that it was at this point that
the agency complied with the settlement agreement. The agency does not
debate complainant's assertion that the extra 15 days were granted in
2001, rather than on February 2, 1999.
Although the agency failed to comply with the agreement in a reasonable
amount of time, complainant has ultimately been granted the remaining
15 days of temporary promotions to allow complainant to be detailed to
the GS-13 level for 365 days. There is no further relief available to
complainant in the instant matter.
The agency's September 18, 2001 decision finding that it complied with
the settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
February 11, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1According to the agency's September 18, 2001 decision, complainant
submitted two notices of noncompliance with the settlement agreement,
dated June 15, 2001 and August 17, 2001. The June 15, 2001 notice was
not included in the record.