0120112383
04-25-2012
Donald E. Thompson, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Donald E. Thompson,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120112383
Agency No. 4V1C1101
DECISION
Upon review, we find that the Agency's decision dated December 20, 2010, dismissing Complainant's complaint for having been pending before or decided by the Agency or Commission was improper pursuant to 29 C.F.R. �1614.107(a)(1). For the following reasons, we REVERSE the Agency's decision.
BACKGROUND
Initially, we note that Complainant previously filed two complaints, Agency Nos. 4V1C1003 and 4V1C09010. On November 30, 2009, the parties previously signed an EEO settlement agreement resolving the foregoing complaints wherein which the Agency agreed to rescind and remove Complainant's August 4, 2009 suspension, credit him with 95 hours of compensatory time, and assign him to the Aerospace Ground Equipment (AGE) yard as a WG-5378 and generate training for this position within 30 days of this agreement. Thereafter, on September 22, 2010, Complainant alleged that the Agency breached the settlement agreement in that on September 9, 2010, his Deputy Commander canceled his AGE Apprentice Course training because he would not sign a Continued Service Agreement (CSA). Complainant indicated that he refused to sign the CSA since it would have placed a monetary penalty on his retirement at his Minimum Retirement Age. On October 6, 2010, the Agency determined that it did not breach the settlement agreement. Complainant previously appealed and the Commission, in Appeal No. 0120110729 (April 25, 2011), affirmed the Agency's determination finding no settlement breach.
On October 19, 2010, Complainant contacted an EEO Counselor alleging discrimination when on September 9, 2010, his Deputy Commander canceled his AGE training because he would not sign the CSA. Unable to resolve the matter informally, Complainant filed the instant complaint on December 6, 2010, alleging discrimination based on age (over 40) when on September 9, 2010, his Deputy Commander canceled his AGE training because he would not sign the CSA. The Agency dismissed the instant complaint because the same matter had been decided by the Agency. Complainant appeals.
ANALYSIS AND FINDINGS
In the instant complaint, Complainant claimed that he was discriminated against when the Agency denied his AGE training because he would not sign the CSA. Upon review, we find that Complainant clearly did not allege that this action breached the November 30, 2009 settlement agreement as he previously claimed on September 22, 2010. Furthermore, it appears that Complainant is alleging that the alleged incident at issue is a subsequent act of discrimination that purportedly violated the settlement agreement. We find that Complainant properly contacted an EEO Counselor and filed the instant complaint as a separate complaint of discrimination. 29 C.F.R. � 1614.504(c).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order herein.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. �1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
4/25/12
__________________
Date
2
0120112383
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120112383