0520120363
01-04-2013
Donald R. Beaver, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
Donald R. Beaver,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Request No. 0520120363
Appeal No. 0120114152
Agency No. 10-CO-FAS-DRB-34
DENIAL
The Agency timely requested reconsideration of the decision in Donald R. Beaver v. General Services Administration, EEOC Appeal No. 0120114152 (March 8, 2012). 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).
BACKGROUND
Complainant and the Agency entered into a settlement agreement on December 29, 2010. The settlement agreement (SA) provided for Complainant to be assigned to a detail of 120 days to the Agency's Region 5 Office in Chicago, Illinois. Complainant notified the Agency via e-mail on May 25, 2011, that he believed the SA had been breached when his detail was not scheduled for the full 120 days. The Agency determined that Complainant had not notified the Agency in a timely manner of its alleged breach and it issued a determination letter in which it dismissed the breach allegation for untimeliness, under 29 C.F.R. � 1614.504(a).
The previous decision determined that the Agency did not support its finding that Complainant's allegation of breach was not filed within 30 days of the date Complainant became aware of the breach. It went on to determine that the Agency had not addressed the merits of Complainant's allegations, and had not rebutted the claims. The previous decision concluded that as the Agency had not shown that it had complied with the SA, the complaint should be remanded to the Agency for Complainant to determine whether he wished to reform the SA to accept the 109-day detail as substantial compliance with the SA or whether he wished to void the agreement in total and resume the processing of his underlying EEO complaints.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the Agency argued that the previous decision was clearly erroneous in its determinations that the Agency had not shown that Complainant's allegation of breach was untimely, had not complied with the SA, and that the Agency had found that it was in compliance with the SA. The Agency argued that the previous decision should not have addressed the merits of Complainant's allegations of breach after it had determined that the Agency had not supported its finding that the breach allegations were untimely. Complainant did not respond to the Agency's request for reconsideration, and did not file any statement in opposition.
DETERMINATION
We find that the Agency's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. The record available for review during the pendency of the previous decision did not contain any statement or document from the Agency which clearly indicated the date on which the Agency relied for its determination of when Complainant became aware of the alleged breach. Therefore, we find that the Agency's request for reconsideration should be denied because it did not demonstrate that the previous decision clearly erred in its decision that that the Agency had not shown that Complainant's allegation of breach was untimely.
Nevertheless, upon our own motion, and in the interest of fairness, we reopen the appellate decision and find, based on the record as it currently stands, that the previous decision's Order to the Agency should be modified. Specifically, we find that there was insufficient evidence in the record to support the previous decision's conclusion that the Agency had breached the settlement agreement, given that the Agency's letter of breach determination had not made any findings in this regard. We note that the Agency has supplied documents in its request for reconsideration which would establish when Complainant was aware of the Agency's alleged breach, attempts made by the Agency to cure that alleged breach, and Complainant's awareness of those attempts.
CONCLUSION
After reconsidering the previous decision and the entire record on its own motion, 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. The Commission, however, has reconsidered the previous decision on its own motion. The decision in EEOC Appeal No. 0120114152 is VACATED, and the complaint is REMANDED to the Agency to issue a new letter of breach determination. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ORDERED, within thirty (30) days of the receipt of this decision, to issue a new determination of breach letter with respect to Complainant's allegations of the breach of the settlement agreement signed on December 29, 2010. The Agency shall address the merits of Complainant's claims of breach and shall provide the appropriate appeal rights to the Commission.
A copy of the Agency's letter of determination 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (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
January 4, 2013
Date
2
0520120363
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120363