0120091155
05-28-2009
Judy A. Davis, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Judy A. Davis,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120091155
Agency No. 9V1M06494
DECISION
On January 7, 2009, complainant filed an appeal with this Commission
alleging that the agency breached a June 4, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.504.
In her appeal, complainant marked "[t]his appeal alleges a breach of
settlement agreement" on EEOC Form 573 and drew an arrow to a paragraph
of the settlement agreement that provides:
[T]he Agency agrees . . .
(3)(g) To expunge the 971 file as well as the Official Personnel File
(OPF) and the Adverse Action file housed in 72 MSS/DPCET. When the
records are expunged, all parties to this agreement will be present:
Representative [], Complainant [] and Respondent []. This action will
be accomplished [no later than] 30 calendar days after coordination of
this settlement agreement.
By correspondence to the Commission dated January 29, 2009, the agency
stated that complainant failed to comply with the breach provision of the
settlement agreement (paragraph (2)(c)) and 29 C.F.R. � 1614.504(a) when
complainant failed to notify the agency's EEO Director about her breach
allegation to seek resolution and/or response. The agency stated that,
accordingly, it has not rendered a final decision as to complainant's
breach allegation, so her appeal should be dismissed as premature.
In opposition to the agency, complainant stated that she informed the
agency of her breach allegation on January 5, 2009 via fax and mail.
Complainant provided a copy of a document faxed to the EEOC on January
5, 2009 indicating copies would be mailed to the agency. In addition,
complainant provided a copy of a fax sent to the agency on February 3,
2009.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides; where a complainant
believes that an agency has failed to comply with the terms of
a settlement agreement, the complainant shall notify the agency
EEO Director, in writing, of the alleged breach within 30 calendar
days of when the complainant knew or should have known of the alleged
noncompliance. Further, 29 C.F.R. �1614.504(b) provides that the agency
shall resolve the matter and respond to the complainant in writing; and,
if the agency fails to respond or if complainant is not satisfied with
its response, complainant may file an appeal with this Commission 35
days after the date he/she served the agency with breach allegations.
Here, complainant informed the agency and the Commission of her
noncompliance allegation about the same time and did not give the agency
an opportunity to respond in accordance with 29 C.F.R. �1614.504(b).
However, it is now well beyond the 35 day timeframe that the agency had
to respond to her breach allegation and they have not done so. Instead,
they asked this Commission to dismiss complainant's appeal. After careful
consideration, we REMAND complainant's allegation of noncompliance to the
agency for processing consistent with this decision and the Order below.
ORDER
The agency is ordered to process the remanded claim of noncompliance,
unless otherwise noted, in accordance with 29 C.F.R. � 1614.504.
The agency shall acknowledge to the complainant that it has received
the remanded claim, resolve the matter, and provide a written response
with appropriate rights to complainant within thirty (30) calendar days
of the date this decision becomes final.
A copy of the agency's written response must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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), 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 (R0408)
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 (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
May 28, 2009
__________________
Date
2
0120091155
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091155