0120093120
05-06-2011
Derrick Franklin, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Derrick Franklin,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120093120
Agency No. AAFES-09-002
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the June 30,
2009 final Agency decision finding no discrimination with regard to
his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as
a Customer Service Team Manager at the Agency's Headquarters facility in
Dallas, Texas. On October 18, 2008, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases
of race (Black) and age (44) when: he was issued his appraisal for the
period of February 1, 2007 to January 31, 2008, and when he was nominated
for an award and was informed on July 1, 2008, that he was denied the
award.
The record showed that the Agency investigated the matter. During the
investigation, on February 9, 2009, Complainant and management entered
into a settlement agreement settling his complaint, namely, Agency
No. AAFES-09-002. Despite the settlement agreement, the Agency issued
Complainant a final Agency decision on June 30, 2009. When Complainant
received the decision, he filed an appeal. On appeal, Complainant
provided a copy of the settlement agreement and argued that the Agency's
management officials lied when he was issued the appraisal and denied
the award.
Upon review of the settlement agreement, the Commission finds that
Complainant's EEO complaint was resolved. Therefore, the Agency should
not have issued a final Agency decision on this matter. Accordingly,
Complainant's appeal is hereby dismissed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
May 6, 2011
__________________
Date
2
0120093120
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120093120