01a14931_r
01-28-2002
Nevaire S. Rich, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Nevaire S. Rich v. Department of Energy
01A14931
January 28, 2002
.
Nevaire S. Rich,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A14931
Agency Nos. 95(88)HQ/SA, 96(02)HQ/NN, 96(89)HQ/NN,
98(001)HQ/NN, 98(131)HQ/NN & 99(031)HQ/NN
Hearing No. 100-A0-7139X
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaints of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
The record indicates that on October 11, 2000, the parties entered into
a settlement agreement which provided, in pertinent part, that:
(a) Within thirty (30) days of the date of the agreement, take any and
all necessary and proper personnel actions to promote complainant from
her current grade/step level of �GS-15/08" to the new grade step level
of �Senior Executive Service-ES 4/term limited appointment/not to exceed
3 years,� said action to be retroactive, using October 1, 1997, as the
date of retroactive promotion calculation;
Provide complainant with any and all monetary bonuses or other
compensation benefits and/or adjustments thereto, to which complainant
would have been entitled in light of the retroactive �term limited�
SES-4 promotion action to be taken in (a); and
Additionally, within thirty (30) days of the date of the agreement,
pay directly to the complainant's attorney the remaining difference
between the total sums represented in (a) and (b) above and $150,000.00
for complainant's attorney's fees, expenses, and costs associated with
all matter herein. In no event are the totals of (a), (b), and (c)
to exceed the grand total of $150,000.00.
The record indicates that on May 14, 2001, complainant alleged that the
agency breached the settlement agreement. Specifically, complainant
alleged that the agency deducted $9,316.12 from her current pay. On July
18, 2001, the agency issued its decision stating that it complied with
items 3(a), (b), and (c) of the settlement agreement. Specifically, the
agency stated that $9,316.12 was deducted from complainant's pay because
it was the repayment of the GS-15 performance award/bonus money that she
was paid during the period of years under item 3(a) of the settlement
agreement. The agency noted that only SES career appointees were eligible
for a performance award and complainant's temporary SES position did not
qualify her for such an award. The agency indicated that complainant
received the entire $150,000.00 under the settlement agreement.
Upon review, the Commission finds that since the record, undisputed by
complainant, indicates that a SES temporary appointee was not eligible
for a performance award, complainant would not have received $9,316.12 but
for her prior GS-15 position. Thus, the Commission finds that $9,316.12
was properly deducted from complainant's pay due to her retroactive SES
temporary position in accordance with item 3(a) and (b). It is noted that
complainant does not dispute any other remaining items of the settlement
agreement. Accordingly, the agency's decision 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
January 28, 2002
__________________
Date