05971078
10-25-1999
Fred Pugh, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Fred Pugh, )
Appellant, )
) Request No. 05971078
v. ) Appeal No. 01965501
) Agency No. 95-00024-005
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On September 17, 1997, Fred Pugh (hereinafter referred to as appellant)
timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Fred Pugh
v. John H. Dalton, Secretary, Department of the Navy, EEOC Appeal
No. 01965501 (August 28, 1997). EEOC regulations provide that the
Commissioners may, in their discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, the
appellant's request is denied.
The issue presented is whether the previous decision properly found that
the agency did not breach the settlement agreement dated January 25, 1996.
On April 4, 1995, appellant filed a formal complaint of discrimination
based on age, when he was not selected for the position of Offset
Operator. In resolution of that complaint, appellant and the agency
entered into a settlement agreement (SA) whereby the agency promised
to seek review of his concern that he was illegally detailed to a
higher-graded position from 1980-1984 without proper compensation.
In exchange, appellant agreed to withdraw his complaint and promised
to retire if a determination in his favor is made and he is paid and
if his request for VSIP ($25,000 separation incentive) is approved.
Thereafter, the agency requested review of his allegation in a letter
dated February 1, 1996.
In April 1996, appellant was notified that the review failed to support
his claim. Also, in July 1996, his application for retirement with
a separation incentive was rejected, and appellant continued to be
employed by the agency. He subsequently filed an appeal alleging that
the agency breached the SA. The previous decision found no breach of
the SA, stating, in part:
the agreement provided no assurances that the appellant would be
compensated for his detail nor that his VSIP request would be approved.
Appellant has filed a request that the Commission reconsider the previous
decision wherein he reiterates his claim to back pay for a detail to
a higher-level position in 1980-1984. The agency asserts that it has
complied with the SA and that appellant's request does not meet the
standards for reconsideration.
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). Having reviewed the record and submissions of the
parties, we find that appellant's request fails to meet the criteria of
29 C.F.R. �1614.407(c).
The issue before us is whether the agency breached the SA. To determine
whether the agency breached the SA, the Commission looks to the
plain meaning of the words of the SA and not to extrinsic evidence.
See O'Farrell v. United States Postal Service, EEOC Request No. 05910518
(September 25, 1991), citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984).
Appellant has not identified any action of the agency by which it breached
the SA, and the record shows that it has complied with its terms.
That appellant's claim for back pay and his application for VSIP were
denied does not constitute a breach, since the SA did not guarantee
either circumstance. Having found that the agency did not breach the SA,
appellant's request for reconsideration is denied.
CONCLUSION
After a review of the appellant's request for reconsideration, the
agency's reply thereto, the previous decision, and the entire record,
the Commission finds that the appellant's request fails to meet any of the
criteria of 29 C.F.R. �1614.407(c). It is therefore the decision of the
Commission to deny the appellant's request. The decision in EEOC Appeal
No. 01965501 (August 28, 1997) remains the Commission's final decision.
There is no further right of administrative appeal on a decision of the
Commission on a Request for Reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
Oct. 25, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat