Wade Knecht, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 22, 2000
01983502 (E.E.O.C. Sep. 22, 2000)

01983502

09-22-2000

Wade Knecht, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Wade Knecht v. Department of the Navy

01983502

September 22, 2000

.

Wade Knecht,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01983502

Agency No. DON-92-00251-022

DECISION

Complainant, on April 1, 1998, filed an appeal with this Commission from

an agency decision dated February 26, 1998, concerning the remedial

relief to which he was entitled based on a finding of discrimination

based on disability.<1>

On August 30, 1993, an EEOC Administrative Judge (AJ) issued a decision

finding that the agency discriminated against complainant on the basis

of his disability (physical), when the agency withdrew an offer to hire

complainant into a Wage Grade-10 Pipefitter's job on January 7, 1992.

On November 23, 1993, the agency adopted the AJ's analysis and conclusion

finding discrimination, but modified the remedy. The agency awarded

complainant, in pertinent part, the following remedies:

Tender an offer to [complainant] to appoint [complainant] to the position

of Pipefitter, WG-10, effective as of that date that [complainant]

would have been appointed into the job;

Provide [complainant] with back pay, including increases in pay, step

increases, and any other promotions to which [complainant] would have

been entitled during that time period as well as any other benefits of

employment, such as seniority, health insurance, leave, etc.

By letter dated January 28, 1998, complainant notified the agency that

they improperly failed to reimburse him �save pay� as provided for in the

AJ's decision. On February 26, 1998, the agency issued a decision finding

that they were in compliance with the November 23, 1993 agency decision.

Specifically, the agency found that because complainant was not on the

rolls of Mare Island Naval Shipyard at the time he was placed at Puget

Sound Naval Shipyard, complainant is not entitled to �retained� pay.<2>

On appeal, complainant argues that through a grievance he �won against

Mare Island,� he would be reinstated from August 23, 1991 to January 7,

1992. Complainant argues that if he had not been discriminated against

he would have had no break in service and, therefore, he is entitled

to Retained Pay at the higher rate of pay. Furthermore, complainant

argues that pursuant to the AJ's decision, he is entitled to �save� pay

because the AJ ordered the agency to �pay whatever those benefits are

with regard to moving expenses and other relocation costs.�

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

that a final action that has not been the subject of an appeal or civil

action shall be binding on the agency.

The Commission finds that complainant failed to show that the agency

is not in compliance with the November 23, 1993 agency decision.

The Commission finds that nowhere in the agency's decision is complainant

entitled to �retained� or �save� pay. Complainant's reliance on the

remedy provided by the AJ is misplaced. The AJ's remedy was modified by

the agency and it is thus only the agency's decision for which complainant

can assert noncompliance. Furthermore, if complainant was dissatisfied

with the remedies ordered by the agency, then he should have filed an

appeal from the agency's November 23, 1993 decision.

For the reasons set forth herein, the Commission hereby AFFIRMS the

agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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).

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, Director

Office of Federal Operations

September 22, 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The terms �save� and �retained� pay are used interchangeably in the

record.