Samuel J. Ing, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.

Equal Employment Opportunity CommissionMar 30, 2000
04970024 (E.E.O.C. Mar. 30, 2000)

04970024

03-30-2000

Samuel J. Ing, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.


Samuel J. Ing v. Department of Veterans Affairs

04970024

March 30, 2000

Samuel J. Ing, )

Complainant, )

)

v. ) Petition No. 04970024

) Appeal No. 01960003

Togo D. West, Jr., ) Agency Nos. 94-1863, 95-0672

Secretary, )

Department of Veterans Affairs,)

Agency. )

_______________________________)

DECISION ON PETITION FOR ENFORCEMENT

The Equal Employment Opportunity Commission (EEOC) has docketed a

petition for enforcement from Samuel J. Ing (hereinafter referred to as

complainant) requesting enforcement of the Commission's Order in Ing

v. Department of Veterans Affairs, EEOC Appeal No. 01960003 (Oct. 28,

1996).<1> This petition is accepted by the Commission in accordance

with EEOC Regulation 29 C.F.R. � 1614.503(a).

ISSUE PRESENTED

The issue presented is whether the agency has complied with the

Commission's October 28, 1996 Order.

BACKGROUND

Complainant and the agency entered into a settlement agreement on

February 16, 1995 in which complainant agreed to withdraw various EEO

matters and the agency agreed to (among other terms) the following:

[2]a. that a mutually acceptable third party specially trained in

mediation and, if possible, radiation safety and nuclear medicine, will be

retained and the cost thereof borne by JLPVAMC [Jerry L. Pettis Memorial

Department of Veterans Affairs Medical Center] to mediate the longstanding

dispute between the Complainant and the JLPVAMC Radiation Safety Officer

in matters pertaining to radiation safety and effective communication;

. . . .

c. that the COS [Chief of Staff] and the Chiefs of HRMS [Human Resources

Management Service] and Nuclear Medicine Service at JLPVAMC will jointly

review the Physician Special Pay ("Special Pay") awarded to Complainant

pursuant to 38 U.S.C.A. Sections 7431, 7433, 7434 and 7437 and determine

whether the amount of Special Pay Complainant currently receives is the

correct amount Complainant should receive, subject to applicable rules,

regulations, practices and policies of the Department of Veterans Affairs

and of JLPVAMC[.]

Complainant informed the agency that it had breached the agreement. By

letter dated August 17, 1995 the agency effectively found that it had

not breached the agreement. In the prior appeal to the Commission

complainant argued that the agency breached provisions 2(a) and 2(c)

of the settlement agreement.

The Commission found in the prior decision that the agency failed to

show that it had complied with provisions 2(a) and 2(c) of the agreement.

The Commission vacated the agency's determination that it did not breach

provisions 2(a) and 2(c) of the settlement agreement and ordered the

agency to conduct a supplemental investigation to determine whether

it breached provisions 2(a) and 2(c) of the settlement agreement.

The Order stated in relevant part:

The agency shall supplement the record with evidence showing:

That a mediator was retained to mediate the dispute as described in

provision 2(a) of the settlement agreement.

A determination regarding [complainant's] Special Pay was made in

accordance with provision 2(c) of the settlement agreement.

Within 30 days of the date this decision becomes final the agency shall

issue a determination that it did not breach provisions 2(a) and/or 2(c)

of the settlement agreement, specifically enforce provisions 2(a) and/or

2(c) of the settlement agreement, or reinstate the settled complaint.

By letter dated August 19, 1997, complainant filed the instant petition

for enforcement. Complainant asserts that the agency had not yet complied

with the Commission's Order in EEOC Appeal No. 01960003.

ANALYSIS AND FINDINGS

By letters dated March 24, 1997 and April 11, 1997, the agency

asserted to the Commission that it had complied with the Commission's

Order and that the agency had complied with the settlement agreement.

The agency has submitted documentation to the Commission showing that

it gathered evidence purportedly proving that the agency complied with

the settlement agreement. The agency, however, has not claimed that

it has issued a decision to complainant finding that the agency did not

breach the settlement agreement. The record does not contain a copy of

a decision issued to complainant finding that the agency did not breach

the settlement agreement. Therefore, we find that the agency failed

to comply with the Commission's Order in EEOC Appeal No. 01960003 and

we grant complainant's petition for enforcement. The Commission shall

order the agency to issue a decision on whether the agency breached

provisions 2(a) and 2(c) of the settlement agreement.

CONCLUSION

The Commission grants the petition for enforcement and finds that the

agency has not yet complied with the Order in EEOC Appeal No. 01960003.

ORDER

The agency shall issue a decision on whether the agency breached

provisions 2(a) and 2(c) of the February 16, 1995 settlement agreement

within 30 days of the date this decision becomes final. The agency's

decision shall include appeal rights to the Commission. A copy of the

decision must be submitted to the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

March 30, 2000

_____________________ ______________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________

Date Equal Employment Assistant

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.