Charles Martinsen, Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJul 1, 2009
0520090166 (E.E.O.C. Jul. 1, 2009)

0520090166

07-01-2009

Charles Martinsen, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.


Charles Martinsen,

Complainant,

v.

Henry M. Paulson, Jr.,

Secretary,

Department of the Treasury,

Agency.

Request No. 0520090166

Appeal No. 0120083674

Agency No. 080055

DENIAL

Complainant timely requested reconsideration of the decision in Charles

Martinsen v. Department of the Treasury, EEOC Appeal No. 0120083674

(December 23, 2008). EEOC Regulations provide that the Commission may,

in its discretion, grant a request to reconsider any previous Commission

decision where the requesting party demonstrates 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. See 29 C.F.R. �

1614.405(b).

In the appellate decision, complainant claimed breach of a March 28, 2008

settlement agreement. By letters to the agency dated April 30, 2008; July

3, 2008; August 7, 2008; and September 11, 2008, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency implement its terms. Specifically, complainant alleged that:

(1) the agency failed to promptly move complainant's office equipment

to Baltimore; (2) the agency did not approve his telework promptly; (3)

as of April 30, 2008, his training requests had not been acted upon;

(4) while the agency provided a letter of reference to complainant,

the letter did not explicitly state that it was a letter of reference;

(5) the agency failed to provide complainant proof that it removed

the 2006 and 2007 counseling memoranda from his personnel file; (6)

complainant was not given his departure rating; (7) the agency did

not restore 36 hours of annual leave and 74 hours of sick leave; (8)

the agency delayed approval of training, which resulted in complainant

attending the Fall 2008 USDA classes rather than the Spring 2008 classes;

and (9) the agency failed to reimburse complainant's expenses to attend

the EEOC Excel Conference in the amount of $1,680.63.

In our decision, the Commission found that claims (2) and (3) were

untimely, and that complainant failed to show breach with respect to

claims (1), (4), (8), and (9). We also found, however, that with respect

to claims (5), (6), and (7), the evidence of record was insufficient to

determine whether the agency breached the settlement agreement at issue.

Therefore, the Commission remanded this matter to the agency for a

supplemental investigation as to claims (5), (6), and (7).

In his request for reconsideration, complainant contends that the

Commission erred in finding that the agency had not breached the

settlement agreement with respect to claims (1)-(4), (8), and (9).

Additionally, complainant requests that the March 28, 2008 settlement

agreement be voided and his underlying complaint be reinstated.

After reconsidering the previous decision and the entire record, the

Commission finds that the request fails to meet the criteria of 29

C.F.R. � 1614.405(b), and it is the decision of the Commission to deny

the request. Complainant failed to present any argument or evidence that

would establish that the prior decision involved a clearly erroneous

interpretation of material fact or law. The decision in EEOC Appeal

No. 0120083674 remains the Commission's decision. There is no further

right of administrative appeal on the decision of the Commission on this

request.

ORDER

Within 30 calendar days of the date this decision becomes final, the

agency shall supplement the record with evidence indicating whether:

(1) the agency restored 74 hours of annual leave and 74 hours of sick

leave to complainant's leave balance and, if so, on what date such leave

restoration was effective; (2) complainant's 2006 and 2007 counseling

memoranda were removed from his performance file, and if so, on what date

such removal was effective; and (3) whether complainant's departure rating

from his January to March 2008 detail to Finance served as his mid-year

review for his 2008 rating period, and if so, what was the rating that

complainant received.

Within 60 calendar days of the date this decision becomes final, the

agency shall issue a final decision, with the appropriate appeal rights,

addressing whether the agency breached the settlement agreement with

respect to claims (5), (6), and (7).

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

RIGHT TO REQUEST COUNSEL (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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 1, 2009

Date

2

0520090166

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0520090166