01983932
09-20-1999
Marcelino Delgado, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Marcelino Delgado v. Department of Agriculture
01983932
September 20, 1999
Marcelino Delgado, )
Appellant, )
) Appeal No. 01983932
v. )
) Agency No. 930114
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellant filed this appeal with the Commission on April 22, 1998 alleging
that the agency breached the first and third provisions of a settlement
agreement entered into on October 20, 1994. The agreement provides,
in relevant part, that:
(1) The Agency agrees to expunge all negative documentation from Agency
files surrounding [appellant's] termination of July 13, 1992, and amend
Agency personnel records to indicate that [appellant] voluntarily resigned
on July 13, 1992.
(3) The Agency agrees to compensate [appellant] the sum of ten thousand
dollars ($10,000).
The file contains several documents from the agency indicating that,
while it was not in compliance when appellant filed her complaint, it has
subsequently cured any breach. The Commission deems these documents to
constitute a decision finding that the agency is no longer in breach of
the agreement. Of the documents submitted, there is clear evidence that
provisions (1) and (3) have been satisfied. With regard to provision
(3), the agency submitted evidence which illustrates that, due to the
fact that it took four years to comply, appellant was paid a total sum
of $12,593.91, which reflects four years of interest accrued on the
initial $10,000. The agency noted that the additional $2,593.91 was a
Prompt Pay late penalty calculated from the published Treasury Prompt
Pay rates for the period of October 1994 (the date the settlement was
reached) through September 1998 (the date the agency reached compliance).
Because the agency is now in compliance and, in addition, has assessed
itself a penalty for the four year delay, we hold that the agreement is
no longer in breach.
Accordingly, the decision of the agency was proper and is, therefore,
AFFIRMED
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
Sept. 20, 1999
____________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations