Billy W. Franklin, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 11, 2002
01A20388_r (E.E.O.C. Feb. 11, 2002)

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.