Steven D. Roebuck, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionAug 25, 2005
01a52678r (E.E.O.C. Aug. 25, 2005)

01a52678r

08-25-2005

Steven D. Roebuck, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Steven D. Roebuck v. Department of the Navy

01A52678

August 25, 2005

.

Steven D. Roebuck,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A52678

Agency No. 04-4523A-08432

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated January 21, 2005, finding that it was

in compliance with the terms of the March 11, 2004 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:

(1) By Monday, March 15, 2004, [the Chief Information Officer will]

assign complainant to a developmental program that will provide

self-instructional books and computer-based training (CBT) and mentoring

as needed.

(2) [Complainant] will let [agency officials] know if he is having

problems with training and will be prepared to discuss other options

for succeeding in the department.

(3) If [complainant] is successful on completing the program within 90

- 120 days, he will be reassigned to a programmer position description

(pd).

By letter to the agency dated November 30, 2004, complainant alleged

that the agency breached the settlement agreement. Specifically,

complainant alleged that the agency provided him with training that

was based on flawed material and incomplete documentation and was

out-of-date. Complainant maintained that he had to spend his own funds

to meet the training requirements for his training program.

In its January 21, 2005 FAD, the agency concluded that complainant

untimely raised his breach claim. The agency further concluded that it

did not breach the agreement because it provided complainant with the

level of training and mentoring provided in the settlement agreement.

EEOC Regulation 29 C.F.R. � 1614.504(a) provides that a complainant must

notify the EEO Director in writing of any alleged noncompliance of a

settlement agreement within 30 days of the date when complainant knew

or should have known of the alleged noncompliance.

In the instant case, the record reveals that complainant was assigned to

a developmental program on March 15, 2004, pursuant to the terms of the

settlement agreement. Complainant was given 90 - 120 days to complete

the program. After evaluating complainant's progress after seven months

in the program, the agency concluded that complainant would not qualify

for a programming position at the GS-11 level. On October 15, 2004, the

agency withdrew complainant from the developmental program and assigned

him to other work. Complainant's breach claim concerns matters that

occurred while he was assigned to the developmental program. Therefore,

upon review of this matter, we find that complainant should have known

of the agency's alleged non-compliance by October 15, 2004, and alleged

breach by November 15, 2004. The record reveals that complainant did

not allege breach until November 30, 2004.<0> Complainant has offered no

evidence that would warrant an extension of the applicable time limits.

Consequently, we find that the agency properly found that complainant's

breach claim was untimely raised. Accordingly, the Commission AFFIRMS

the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

_August 25, 2005_________________

Date

0 1We note that the settlement agreement

properly informed complainant of the time limit for alleging

noncompliance.