01992299
02-26-2001
Paul M. Pierre, Jr., Complainant, v. John D. Ashcroft, Attorney General, Department of Justice, Agency.
Paul M. Pierre, Jr. v. Department of Justice
01992299
February 26, 2001
.
Paul M. Pierre, Jr.,
Complainant,
v.
John D. Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01992299
Agency No. I-96-7077
Hearing No. 100-97-7263X
DECISION
Complainant filed a formal EEO complaint that was resolved by a settlement
agreement entered into in July 1998. The agreement stated in relevant
part as follows:
1. [Agency] agrees that it will retroactively promote [Complainant]
to his current position, Deputy Assistant District Director for
Adjudications, effective the first pay period of May 1997.
2. [Complainant] agrees that his retroactive promotion will not result
in any award or payment of back pay that may be owed as a result of the
foregoing personnel action.
[Agency] agrees that it will not seek any reimbursements from
[Complainant] that may occur because he previously occupied a position
where he received AUO pay.
Complainant submitted to the agency a request for implementation dated
November 3, 1998. Complainant stated that the terms of the settlement
had not been implemented. The record does not contain a response from
the agency to complainant concerning his request for implementation.
On appeal, complainant maintains that the agency did not retroactively
promote him to a GS-14 position effective the first pay period of
May 1997. Complainant contends that the agency has also violated the
third provision of the settlement. According to complainant, the agency
has garnished his pay, and has collected over $5,000.00. Complainant
submits a notice of intent to offset his salary dated November 8, 1998,
that states he was overpaid $10,656.00. Complainant further argues that
the agency illegally stopped his AUO, which he claims he was entitled
to receive.
Upon review of the record, we are unable to determine whether the agency
has complied with the first and third terms of the settlement agreement.
The record is devoid of evidence as to whether complainant has received
a retroactive promotion to the position of Deputy Assistant District
Director for Adjudications, effective the first pay period of May 1997.
Therefore, it is necessary that the record be supplemented with regard
to whether the agency has complied with this term of the agreement.
As for the third provision, complainant has submitted a notice of
intent to offset his salary, and he claims that the agency has recovered
over $5,000.00. As part of its supplemental investigation, the agency
should obtain evidence as to whether the third term of the settlement
has been violated. Accordingly, this matter is REMANDED to the agency
for further processing pursuant to the Order below.
ORDER
The agency is ORDERED to conduct an investigation of complainant's claim
that the agency has failed to comply with the terms of the settlement
agreement. The agency shall supplement the record with evidence
regarding whether it has complied with the agreement. Upon completion
of its investigation, the agency shall issue a decision as to whether
it has complied with the settlement. The decision shall address the
specific claims raised by complainant and it shall include appeal rights
to the Commission. The agency decision shall be issued within thirty
(30) calendar days of the date this decision becomes final.
A copy of the agency's decision must be submitted to the Compliance
Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
(R0900)
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 (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
February 26, 2001
__________________
Date