01A21057_r
04-03-2002
Alan Bradley, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Alan Bradley v. Department of the Navy
01A21057
April 3, 2002
.
Alan Bradley,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A21057
Agency No. 01-32411-003
DECISION
Complainant appeals to the Commission from an agency decision dated
November 5, 2001, dismissing complainant's complaint. Complainant,
in his September 21, 2001 complaint, alleges breach of a January 24,
2001 settlement agreement and raises a subsequent act of discrimination,
i.e., the alleged cancellation of the announcement for the Housing
Manager position on June 27, 2001, based on disability and reprisal.
The settlement agreement provided, in part, that:
The agency agrees to the following for a period of two years:
to announce Housing Management Specialist positions, GS-1173-9 located
at the Naval Station Newport, at both the GS-7 and GS-9 level.
to afford the complainant priority consideration for such positions as
noted above.
The agency dismissed complainant's complaint finding that it was improper
to file a new complaint. Instead, the agency found that complainant
should have contacted the Deputy Equal Employment Opportunity Officer
as described in Appendix B of the agency's Discrimination Complaints
Processing Manual.
Complainant, on appeal, argues that he filed a new complaint because,
along with a breach of settlement claim, he intended to file a new charge
of discrimination. Complainant argues that when he filed his informal
complaint, he was under the belief that he was notifying the command and
EEOC at the same time. Further, complainant argues he was not advised
to contact them separately, nor was he given a copy of Appendix B.
Pursuant to 29 C.F.R. � 1614.504(c), allegations that subsequent acts
of discrimination violate a settlement agreement shall be processed
as separate complaints. Complainant properly filed a new complaint
alleging a subsequent act of discrimination. The agency's dismissal of
complainant's complaint was improper and the complaint is remanded for
further processing.
Regarding complainant's allegation of breach of the January 24, 2001
settlement agreement, we will recognize complainant's complaint as
sufficient notification of breach as required by 29 C.F.R. � 1614.504(a).
However, the record is insufficient to make a determination on whether
the agency breached the settlement agreement since the agency failed
to address the subject matter, i.e., whether complainant was given
priority consideration for the Housing Management Specialist positions.
Therefore, the matter of the settlement breach is vacated and remanded
to the agency.
ORDER
(1) With regard to complainant's subsequent claim of discrimination,
the agency is ordered to process the remanded claim in accordance with 29
C.F.R. � 1614.108. The agency shall acknowledge to the complainant that
it has received the remanded claim within 30 calendar days of the date
this decision becomes final. The agency shall issue to complainant a
copy of the investigative file and also shall notify complainant of the
appropriate rights within 150 calendar days of the date this decision
becomes final, unless the matter is otherwise resolved prior to that
time. If the complainant requests a final decision without a hearing,
the agency shall issue a final decision within 60 days of receipt of
complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice
of rights must be sent to the Compliance Officer as referenced below.
With regard to complainant's settlement breach claim, the agency, within
30 calendar days of the date this decision becomes final, is ORDERED to
provide in the record evidence as to whether it complied with the January
24, 2001 settlement agreement. Based on the foregoing, the agency shall
issue a decision regarding whether the agency breached the settlement
agreement or notify complainant that the agency is reinstating his
complaint for further processing from the point that processing ceased.
A copy of the agency's decision or the agency's letter notifying
complaint of the reinstatement 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.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 3, 2002
__________________
Date