01a22468_r
07-18-2002
Kamal A. Malek, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kamal A. Malek v. Department of Veterans Affairs
01A22468
July 18, 2002
.
Kamal A. Malek,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22468
Agency No. 92-18
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaint of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
The record indicates that on September 21, 1995, the parties entered
into a settlement agreement which provided, in pertinent part, that:
a. Management of the Nuclear Medicine Service apologizes for any acts
toward [complainant] that he may have suffered from March through
December, 1992;
VA Medical has not and will not tolerate retaliation by any of its
employees against another employee.
On January 15, 2002, complainant alleged that the agency breached
provision 2.b of the settlement agreement. Specifically, complainant
indicated that on December 19, 2001, he found out that he was not given
an 18-hour or 20-hour time-off award recognizing his leadership role with
the union. On March 7, 2002, the agency issued its decision finding no
settlement breach.
Upon review, the Commission finds that the incidents alleged, occurring
six years after the settlement agreement, are not covered under the
settlement agreement and are beyond the scope thereof. The Commission
notes that the alleged denial of an 18 or 20 hour time-off award
constitutes a reprisal claim or a claim of further discrimination on the
part of the agency which should be processed as a separate complaint
under 29 C.F.R. � 1614.106, rather than as a claim of noncompliance
with a settlement agreement. See 29 C.F.R. � 1614.504(c). The agency,
in its decision, properly advised complainant to contact its EEO Office
if he wishes to further pursue a separate complaint of discrimination.
Accordingly, the agency's decision finding no breach of the settlement
agreement is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 18, 2002
__________________
Date