05a50397
04-08-2005
Mary Jones, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency.
Mary Jones v. Army and Air Force Exchange Service
05A50397
4/8/05
.
Mary Jones,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Army & Air Force Exchange Service (AAFES),
Agency.
Request No. 05A50397
Appeal No. 01A45407
Agency No. 99-087
DENIAL
Mary Jones (complainant) timely requested reconsideration of the
decision in Mary Jones v. Army and Air Force Exchange Service, EEOC
Appeal No. 01A45407 (December 21, 2004). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed an appeal of an agency final decision which found
the agency had not breached a settlement agreement. Specifically,
the settlement agreement provision in question required the agency to:
change complainant's personnel records to reflect that she resigned from
the agency to care for an ailing relative designated as Personnel Action
Code (PAC) 63 (Remain at Home), effective March 12, 1999.
The prior decision found complainant had established that the agency
breached the settlement agreement when it failed to remove all references
to her termination from her personnel records. Accordingly, it ordered
the agency to implement the terms of the settlement agreement.
In her request, complainant argues that she was not selected for a
position due to the agency's breach and asks that she be compensated.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. We remind the complainant that the only remedies available
for a breach are specific performance of the agreement or reinstatement
of complainant's underlying complaint. 29 C.F.R. � 1614.504(a).
The decision in EEOC Appeal No. 01A45407 remains the Commission's final
decision. There is no further right of administrative appeal on the
decision of the Commission on this request.
ORDER
1. Within thirty days of the date that this decision becomes final,
the agency shall notify complainant in writing that it has changed all
of her personnel records to reflect that she resigned from the agency
to care for an ailing relative designated as Personnel Action Code (PAC)
63 (Remain at Home), effective March 12, 1999. Further, all references
to complainant's separation for cause and/or termination from the agency
shall be expunged from agency personnel files and her disciplinary record.
2. Within thirty days of the date that this decision becomes final,
the agency shall notify complainant in writing that all of her personnel
records shall denote that she is eligible for rehire to the agency.
3. Copies of the agency's letters of notification to complainant must
be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
4/8/05
Date