0520070374
04-20-2007
Marcelino Aviles,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Request No. 0520070374
Appeal No. 0120054404
Agency No. P-2004-0007
DENIAL
The agency timely requested reconsideration of the decision in Marcelino
Aviles v. Department of Justice, EEOC Appeal No. 0120054404 (February
6, 2007). 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).
In its request for reconsideration, the agency asserts that complainant's
appeal concerning an alleged settlement breach was improperly considered
by the Commission. The agency recites the following in support of
such argument: on April 9, 2005, complainant filed a petition with
the agency's Justice Management Division, alleging that the agency
breached a settlement agreement concerning the same matters as those
subsequently decided by the Commission in EEOC Appeal No. 0120054404.
After unsuccessful attempts at informal resolution, the petition was
forwarded to the Justice Management Division for a final decision.
Prior to receiving the final decision from the Justice Management
Division, on June 13, 2005, complainant filed his appeal alleging
breach of settlement with the Commission. Subsequently on June 14,
2005, complainant submitted a letter to the Commission indicating that
his appeal was "withdrawn until that time that a final agency decision
is provided by the EEO Director of the US Department of Justice."
The agency contends that after it issued its FAD on December 2, 2005,
it was never notified that complainant's appeal alleging settlement
breach was "reinstated." Therefore, it had no opportunity to refute
the agency's arguments as set forth in his original appeal.
As to this first argument, we note initially that the record is devoid of
any such letter from complainant supposedly indicating that his appeal was
"withdrawn until that time that a final agency decision is provided by the
EEO Director of the US Department of Justice." We note that approximately
one week after complainant supposedly submitted the letter withdrawing
his appeal, he submitted a brief in support of the appeal. Therefore,
the agency was on notice that complainant was continuing to pursue his
appeal before the Commission, and could have responded to complainant's
arguments and/or requested that the Commission close the appeal on the
basis that it was premature. The agency did neither, and accordingly,
we decline to grant reconsideration on this basis.
In its request, the agency also contends that all of the duties
assigned to complainant were within the parameters of complainant's
job description, and for the Commission to have determined otherwise
is a clear misinterpretation of the facts. We note that even if true,
our charge in deciding EEOC Appeal No. 0120054404, was to review the
contents of, and agency compliance with, a settlement agreement entered
into voluntarily by the parties, and not to determine whether or not
certain assignments were within complainant's job description.
After reconsidering the previous decision and the entire record, 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 decision in EEOC Appeal No. 0120054404 remains the
Commission's final decision. 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 hereby ordered within thirty (30) calendar days of the
date this decision becomes final to specifically implement the terms
of the settlement agreement entered into by the agency and complainant
on December 7, 2004. The agency shall send a letter to complainant
confirming its commitment to fully implement the settlement agreement,
and specifying that: the agency will fully implement the terms of the
agreement by allowing complainant to perform the duties of the JISI,
and of his position, the Intelligence Research Specialist, without
interference; the agency will allow complainant to be supervised by the
Intelligence Operation Officer, in the sense that his assignments will
primarily emanate from him in furtherance of the JISI; and the agency
will allow complainant to attend necessary Joint Intelligence Sharing
initiatives and/or Joint Terrorism Task force programming or training.
In the event that the agency's program known as the Joint Intelligence
Sharing Initiative (Intelligence Operations Program) is no longer in
existence, and no successor program of a similar purpose has taken its
place, the agency shall reinstitute processing of complainant's EEO
complaint, agency number P-2004-0007, from the point at which processing
ceased.
A copy of the agency's letter of commitment, or in the alternative,
proof that the JISI/IOP is no longer in existence and the complainant's
EEO complaint has been reinstituted for processing, must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (P0900)
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 (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
April 20, 2007
__________________
Date
4
0520070374
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036