0120065070
04-11-2008
Denard J. Southall, Complainant, v. Elaine L. Chao, Secretary, Department of Labor, Agency.
Denard J. Southall,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01200650701
Agency No. CRC0311124
DECISION
On September 1, 2006, complainant filed an appeal from the agency's
August 10, 2006 final decision concerning his allegation that the agency
breached a settlement agreement ("Agreement") entered into by the parties
on May 14, 2004. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a).
The record reveals that on May 14, 2004, the parties entered into an
Agreement which stated, in pertinent part: "the Agency agrees to promote
Complainant to [sic] a Senior Printing Specialist GS-1654-12 step 10 to GS
13 step 7 as of pay period 13 beginning May 16, 2004." Complainant was
promoted to the position of Printing Specialist, GS-1654-13, pursuant
to the terms of the Agreement. Subsequently, in an undated memorandum
from the Human Resources Officer, complainant was informed that his
position was being abolished as a result of competition of the Division
of Printing and Supply Management in the Business Operations Center
(BOC) of the Office of the Assistant Secretary for Administration and
Management (OASAM) under the Department's competitive souring initiative.
The memorandum offered complainant an assignment to the position of
Supervisory Printing Specialist, GS-1654-11, (effective November 26,
2004) with pay and grade retention through November 26, 2006.
On May 2, 2006, complainant notified the agency that "the settlement
agreement which made [him] a GS-13 was violated by Competitive Sourcing
which reduced [his] grade to a GS-11." He also indicated that the fact
that his GS-13 salary will be retained until November 26, 2006, would
reduce his retirement pay.
In the FAD, the agency first found that the allegation of breach was
untimely since the effective date of the change to the lower grade
occurred on November 24, 2004, and complainant did not notify the agency
of alleged noncompliance until April 19, 2006. The FAD further found
that alternatively, the agency has satisfied the requirements of the
Agreement, in that complainant was promoted to the position of Senior
Printing Specialist, GS-1654-13/7, as of May 16, 2004. The agency
further noted that complainant was entitled to pay retention and grade
retention through November 6, 2006. The agency noted that the settlement
agreement did not specify a period of time for duration of the terms of
the settlement agreement. The agency further noted that complainant
did not allege that any change in duty or authority had occurred.
The agency found no evidence of noncompliance.
On appeal, complainant contests the agency's decision to process this
matter as an allegation of breach of settlement as opposed to conducting
EEO counseling.2 Complainant further insists that the agency is in
breach of the Agreement and notes that this action will reduce his
retirement pay. The agency requests that the Commission affirm its
final decision.
EEOC Regulation 29 C.F.R. � 1614.504(a) requires that claims of breach
must be raised within thirty days of when a complainant knew or should
have known of the alleged noncompliance. Moreover, this thirty-day
time limit was set forth in a letter from the agency to complainant
dated May 25, 2004. Complainant was demoted effective November 2004.
Although the letter from the Human Resources Specialist indicates that
complainant was entitled to pay and grade retention until November 2006,
complainant does not contend that he was unaware in 2004 of how this
demotion was going to effect the terms or conditions of his employment
(to include his retirement pay). Accordingly, we find that complainant
knew or should have known of the alleged breach of settlement agreement
at least by the effective date of the demotion (November 2004), yet he did
not alleged noncompliance until April 19, 2006. Complainant has not made
any argument that would warrant a waiver or extension of the applicable
time limits. Consequently, the Commission dismisses complainant's breach
claim as untimely raised.
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
April 11, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Based on a review of complainant's letter dated April 27, 2006,
complainant presented this matter as a breach of settlement agreement
allegation. Accordingly, we find that the agency processed the matter
properly.
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0120065070
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036