01a03600
07-27-2000
Robert J. Perry, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Robert J. Perry v. Department of Transportation
01A03600
July 27, 2000
.
Robert J. Perry,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A03600
Agency No. DOT-6-97-6098B
DECISION
Complainant timely appealed the agency's decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a),
� 1614.405, and � 1614.504).
The record indicates that the parties entered into a settlement agreement
dated September 10, 1998,<2> resolving complainant's complaint filed on
July 31, 1997. The settlement agreement provided, in pertinent part,
that complainant would be assigned to a FG-2152-14/3 developmental level
ATCS position at the Southern California TRACON (SCT) effective on or
before January 1, 1999.
On February 17, 2000, complainant alleged that the agency breached
the settlement agreement. Specifically, complainant indicated that on
January 13, 2000, he was informed by an agency employee from the Office
of Civil Rights that the agency had no intention of complying with the
settlement agreement. Complainant indicated that on October 1, 1998,
the agency implemented a new pay plan and pay description and the old
GS-2152-14 grade level was replaced with ATC-12-LH00 at SCT. Complainant
alleged that when he reported for duty at SCT on October 11, 1998, his
pay was set at a GS-2152-13/9, and it was not converted in accordance
with the October 1, 1998 pay implementation. Complainant indicated that
at the time of the settlement agreement, he understood that he would
be converted to the new pay plan because he had secured this position
at SCT during the relevant time. Complainant noted that the agency,
however, contended that because he was not working at SCT on October 1,
1998, he was only eligible for the minimum pay, step 1 (equivalent to
the old GS-2152-14/1), and not step 3 under the settlement agreement.
In its decision dated March 10, 2000, the agency stated that complainant
knew that the agency failed to comply with the settlement agreement
on October 11, 1998, when he was assigned to SCT at a GS-13/9 level
position, but he did not raise the alleged matter until February 17,
2000, which was beyond the requisite time limit.
On appeal, complainant contends that the past 15 months, he was
convinced by a number of agency employees that he would receive his pay
in accordance with the settlement agreement. Complainant indicates that
he timely alleged the settlement breach when he received the final word
from his regional office that his pay would not be changed in accordance
with the settlement agreement. Complainant also alleges that although
he was assigned to SCT on October 11, 1998, his pay was not adjusted to
the minimum pay band (step1) until January 2, 2000, and he was not even
given the step 3 pay under the settlement agreement.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
In the settlement agreement at issue, the agency agreed to assign
complainant to a FG-2152-14/3 level position at SCT effective on or
before January 1, 1999. The record indicates that after the settlement
agreement, complainant was assigned to a GS-2152-13/9 level position
at SCT on October 11, 1998. Upon review, the Commission finds that
since complainant was not placed in a FG-2152-14/3 level position at the
relevant time, he knew that the agency failed to comply with the terms of
the settlement agreement on or around October 11, 1998, or the latest on
January 1, 1999, the effective date wherein which the agency agreed to
assign him to the alleged level position. However, complainant did not
raise the alleged breach until February 17, 2000, which was beyond the
30-day time limitation. Although complainant contends on appeal that he
was assured by a number of agency employees that he would be receiving
the pay under the settlement agreement, his contentions are not supported
by any evidence in the record. Furthermore, the Commission finds that
complainant's waiting until he was absolutely ascertained that the agency
would not comply with the terms of the settlement agreement does not
justify his raising of the settlement breach claim in a untimely manner.
Accordingly, the agency's decision not to reinstate the settled matters
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 27, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2It is noted that although the signature page of the settlement agreement
is missing from the record, the parties confirm that it was entered into
on September 10, 1998.