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.