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