Roosevelt D. Franklin, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 28, 2000
01990408 (E.E.O.C. Dec. 28, 2000)

01990408

12-28-2000

Roosevelt D. Franklin, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Roosevelt D. Franklin v. Department of the Army

01990408

December 28, 2000

.

Roosevelt D. Franklin,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01990408

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated September 15, 1998, finding that it was in

compliance with the terms of the February 25, 1992 settlement agreement

into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �

1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that complainant's

�most recent grade increase up to GS -10" would be backdated for a period

of two years from the effective date of the agreement and be applied

to civil service retirement benefits. By letters to the agency dated

July 21 and 22, 1998, complainant alleged that the agency was in breach

of the settlement agreement, and requested that the agency specifically

implement its terms. Specifically, complainant alleged that the agency

failed to promote him to GS-10, Step 9, as was agreed upon, and to

correctly backdate that agreed upon grade and step.

In its September 15, 1998 decision, the agency concluded that it had

fully complied with the settlement agreement and that complainant's

claims of breach were untimely. In response to complainant's appeal,

the agency also notes that complainant retired on March 31, 1992, at

the GS-10, Step 8 level, and that the backdated promotion was used to

calculate complainant's retirement benefits.

EEOC Regulation 29 C.F.R. � 1614.504(a) provides, in pertinent part,

that if a complainant believes that the agency has failed to comply

with the terms of a settlement agreement or decision, complainant shall

notify the EEO director, in writing, of the alleged noncompliance within

30 days of when the complainant knew or should have known of the alleged

noncompliance.

In the instant case, without reaching the merits of complainant's

breach claim, we find that complainant failed to timely notify the

agency of their alleged noncompliance with the settlement agreement.

The record indicates that complainant's claim of noncompliance was made

over six years from both the February 25, 1992 date of the settlement

agreement and his March 31, 1992 retirement. Complainant, however,

has offered no explanation for his delay in notifying the agency of

their alleged noncompliance. Therefore, as complainant did not notify

the agency within 30 days of when he knew or should have known of the

alleged noncompliance with the terms of a settlement agreement, his

claim of breach was untimely.

Accordingly, the agency's determination that complainant's claim of

noncompliance was untimely filed is AFFIRMED.

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 (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

December 28, 2000

__________________

Date