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.