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out-of-date.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.