01A00805_r
02-11-2002
Alfonso D. Del Castillo, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Alfonso D. Del Castillo v. Department of Commerce
01A00805
February 11, 2002
.
Alfonso D. Del Castillo,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A00805
Agency Nos. 96-54-0310, 96-54-0361, 99-54-00096
DECISION
BACKGROUND
On August 16, 1999, the agency issued a final decision accepting numerous
claims of employment discrimination for investigation, dismissing others,
and finding partial breach of a June 29, 1998 settlement agreement.
Complainant received the agency's decision September 7, 1999, and
timely appealed to this Commission on October 6, 1999, docketed as EEOC
Appeal No. 01A00223. Complainant submitted additional documentation to
substantiate his appeal, docketed separately as EEOC Appeal No. 01A00805.
The Commission administratively closed EEOC Appeal No. 01A00223 when it
learned that complainant requested a hearing for his accepted claims,
docketed as Hearing No. 120-A0-3403X. In its closure, the Commission
remanded the dismissed claims for consolidation with the claims pending
a hearing with the EEOC Administrative Judge (AJ).<1>
Complainant, understandably confused about the procedural posture of his
appeals, requested that the Commission clarify the appropriate forum for
his claims. By letter dated August 31, 2000, the Commission explained
that complainant's claim of breach was pending on appeal in EEOC Appeal
No. 01A00805. The other claims, associated with Agency No. 99-54-00096,
would be handled by the AJ in Hearing No. 120-A0-3403X. Accordingly,
the present decision will only address the issue of settlement breach.<2>
On June 29, 1998, the agency and complainant agreed to settle two
EEO complaints alleging harm on the bases of age, national origin
(Hispanic), and reprisal for prior EEO activity (Agency Nos. 96-54-0310
and 96-54-0361). The agreement provided, in pertinent part:
(1) The Agency will arrange for and provide Complainant with an
individualized assessment of his qualifications for the position of
Physical Scientist, GS-1301-12, at the Agency. A Human Resources expert
at the Agency, who does not know any of the parties involved in this
litigation, will review Complainant's . . . application materials, as
submitted to the Agency in Complainant's most recent application. . . .
This individual will thereafter meet with Complainant for an information
session informing Complainant of the specific means by which he could meet
the minimum qualifications for a position with the Agency as a Physical
Scientist, including a list of courses he may take in order to so qualify.
(2) Following the conclusion of the individualized assessment meeting
. . . the Agency agrees to pay the costs of tuition and required textbooks
for a total up and including 24 credit hours of course work directly
related to the Physical Scientist position, taken by Complainant at a
rate of not more than one course per semester or quarter, successfully
completed by Complainant for credit with a final grade of C or higher
at an accredited U.S. College or University. During the time in which
Complainant is enrolled in the approved course work described herein,
the Agency agrees to provide Complainant with up to three (3) hours of
administrative leave per pay period, in accordance with Agency policy
and practice.
(3) At the time that Complainant demonstrates that he has achieved the
minimum qualifications necessary to be considered for a position as a
GS-1301-12 Physical Scientist with the Agency, . . . the Agency will
issue to Complainant a letter of certification, attesting to the fact
that Complainant has met the minimal qualifications necessary to be
considered for a position as a Physical Scientist with the Agency.
During the period of time in which the Agency is lawfully performing
its duties under this Settlement Agreement and until the Agency issues
its letter of certification to Complainant, Complainant agrees not
to apply for any position with [the National Oceanic and Atmospheric
Administration (NOAA)] as a Physical Scientist, GS-1301-12, within the
Washington, DC metropolitan area.
Within calendar year 1998, the Agency will provide Complainant, on a
�best efforts� basis, depending on staffing and workload, with a total
of two (2) months on-the-job Aerospace Engineering Technician training
with the Aerospace Engineering Technician on his current crew.
Within thirty (30) days . . . the Agency agrees to purge its records,
including Complainant's Official Personnel File, of any reference to
the above-captioned EEO complaints. This obligation does not extend to
a requirement to purge official records in the Agency's Office of Civil
Rights or Office of General Counsel.
The parties agree that the EEOC retains jurisdiction over these
complaints. . . according to the terms of 29 C.F.R. � 1614.504. . . .
Allegations of noncompliance by the Agency shall be made in writing to
. . . [the] Equal Employment Opportunity Officer, within thirty (30)
days of the date on which Complainant has knowledge of, or should have
known, of the alleged noncompliance.
On November 2, 1998, complainant contacted an EEO Counselor to
discuss, inter alia, the agency's breach of the settlement agreement.
Complainant contended that the agency breached provisions (1) - (4), (7),
and (8) of the settlement agreement. According to the Counselor's Report,
complainant was repeatedly told that he must notify the EEO Director,
in writing, of the alleged breach.
On March 30, 1999, complainant's union representative informed the EEO
Director, in writing, of the alleged breach. In this notice, complainant
took issue with the agency's failure to perform its assessment of his
credentials, provide him with a list of courses to attend, provide him
with a letter of certification pursuant to provision (3), and pay for
classes complainant attended at Embry-Riddle Aeronautical University
(ERAU).
On April 1, 1999, complainant filed his formal complaint in Agency
No. 99-54-00096, raising numerous new claims, and reiterating his claim
of breach. By letter dated April 6, 1999, complainant provided additional
arguments for his complaint and claim of breach. Complainant argued,
in relevant part, that the agency breached provisions (1) - (4), (7),
and (8) of the settlement agreement. Complainant contended that the
agency's nine month delay in completing the individualized assessment
as required by the settlement was evidence of bad faith. Further,
complainant contends that he was denied opportunities that he otherwise
would have been able to apply for if the agency did not delay certifying
complainant as qualified for the GS-12 Physical Scientist position.
He argued that the agency failed to purge his records of any reference
to his EEO complaint, and collected negative references of his work from
complainant's coworkers.
On May 12, 1999, the agency issued its �individualized assessment� of
complainant's credentials, pursuant to provision (1) of the settlement.
The assessment found that complainant was qualified for the GS-1301
Physical Scientist series, but only as an entry-level GS-5 employee,
not a GS-12. Rather than provide a list of courses for complainant to
attend, the expert suggested that �NOAA management . . . assign a mentor
who, along with his academic advisor, helps [complainant] select upper
level courses in the fields of physical science and engineering relevant
to NOAA positions.�
On May 13, 1999, the agency issued a decision finding no breach of
the agreement. In this decision, the agency noted that the agreement
provided no time frame for completing the individualized assessment
required in provision (1). The agency found that it acted within
a reasonable amount of time, because the Human Resources expert, an
employee at the Patent and Trademark Office (PTO), needed to perform
a �substantial amount of research� prior to completing her assessment.
The agency explained that it had to find an expert from outside NOAA,
in order to assure that they had no knowledge of the parties as required
by the agreement. In addition, the agency noted that the PTO employee
had to enlist a �subject matter expert� to aid in her determination.
The agency concluded by stating, �[i]t is now up to [complainant]
and the agency to proceed with the terms of [provisions] (2) and (3)
of the settlement agreement.�
Complainant never appealed the agency's May 13, 1999 decision. However,
the agency addressed complainant's claims of breach again in its August
16, 1999 final decision.<3> In this second decision, the agency found
no �bad faith,� reiterating that it assessed complainant's credentials
within a reasonable amount of time. However, it found a �partial�
breach of provision (1), because the agency failed to advise complainant
of what specific courses and experience would help him qualify for the
GS-12 Physical Scientist position. To remedy this breach, the decision
ordered the agency to:
(A) [D]esignat[e] a Human Resources Specialist (and, if necessary,
a subject-matter expert) with agency-specific knowledge sufficient to
determine whether Complainant is qualified for the Physical Scientist
position at the GS-12 level.
If it is determined that complainant is not qualified at the GS-12 level,
the agency will provide complainant with an assessment of the types of
course work and/or specialized experience that would help him qualify
at the GS-12 level. . . .
Concerning provision (2), the agency found no breach for its failure to
reimburse complainant for three courses he attended at ERAU: Aviation
Psychology, Production and Procurement in the Aviation Industry,
and Human Factors in the Aviation Industry. According to the agency,
its reimbursement denial was justified because complainant was only
entitled to reimbursement for one course per semester, and had enrolled
in classes that were irrelevant to the Physical Scientist position.<4>
The agency noted that complainant must have �approval� prior to taking
a course and seeking reimbursement under the agreement, because the
agency must agree that the course is �directly related� to establishing
complainant's qualification for a GS-12 Physical Scientist position.
The decision noted, however, that compliance with provision (2) in the
settlement agreement was predicated, at least in part, on the agency
providing complainant with a list of courses to attend. Therefore,
it found �partial� breach of provision (2), and ordered:
Once Complainant and the Agency have identified the types of course
work directly related to the Physical Scientist position, they will
cooperate . . . as follows:
Complainant will obtain the Agency's approval before enrolling in any
course taken in fulfillment of [provision] 2.
Complainant and the Agency will distinguish, by any reasonable means,
which training is taken under the terms of [provision] 2 and which
training is taken under other Agency programs.
Since the individualized assessment did not find complainant qualified
for the GS-1301-12 Physical Scientist position, the agency had no
obligation to issue complainant a letter stating that he was qualified
for the position. Therefore, the agency found no breach of provision
(3) in the settlement agreement.<5>
The agency refused to address complainant's claim of breach with regard
to provision (7), due to complainant's failure to timely raise the claim
of breach. The agency found that complainant did not raise the claim
of breach in provision (7) in writing to the EEO Director until April 6,
1999, more than thirty (30) days after he knew about the agency's alleged
noncompliance. It also ruled complainant's discussions with the EEO
Counselor insufficient to comply with the time limit � he did not satisfy
the notice requirement until writing the EEO Director on April 6, 1999.
Concerning provision (8) of the agreement, the agency found no evidence
that it kept any reference to complainant's EEO complaints in his
Official Personnel File. Complainant's claim, based on statements that
�large volumes of documentation� about him were kept, did not establish
that any of the information concerned complainant's EEO complaints.
The agency noted that documents containing �negative information� were
beyond the scope of the settlement.
On appeal, complainant argues that the agency's delay in providing
the individualized assessment of complainant's credentials, and the
content of the assessment, are both evidence of bad faith. Complainant
contends that he negotiated to have an �expert� perform the assessment,
because an �expert� would be capable of providing the assessment on
an expedited basis, and would not have to engage in significant study
prior to issuing her report. Further, complainant contends that the
assessment inappropriately discounted his education, and used a �subject
matter expert� who was an electrical engineer without any experience
as a Physical Scientist. Complainant noted that he recently received
a master's degree in aeronautical science, specializing in aviation
aerospace management and aviation aerospace safety systems, which must
be considered in assessing his credentials. After the agency conducted
an inappropriate assessment of his credentials, complainant asserts
that it intentionally failed to provide him with guidance on training
courses to keep him from becoming eligible for soon-to-be-vacant Physical
Scientist positions.
Complainant implores the Commission to consider his allegation of breach
timely with respect to provision (7). He contends that he met with a
�civil rights officer� on July 24, 1998, to discuss his claim of breach.
According to complainant, this civil rights officer informed complainant
that she would take care of the problem, and complainant should not put
anything in writing until she had an opportunity to discuss the matter
with management. Concerning the absence of any reference to provision (7)
in his March 30, 1999 letter of breach, complainant states simply that
�it is unclear� why his union representative did not raise the issue.
He argues that the agency was aware of the issue, and therefore, the
Commission should consider it timely.
Complainant also contends that he was duped into signing the agreement,
because he was verbally told that he would receive reimbursement for
his classes at ERAU. According to complainant, immediately prior to
his signing the agreement, the agency acknowledged that complainant was
enrolled at ERAU in accredited courses related to aerospace or physical
science, and agreed to pay for the courses. Complainant contends that
consideration for his signing the agreement included a statement from
the agency attorney that she �does not see any problem in the agency
approving . . . more than one class per semester.�
Complainant also is unhappy with the remedy provided in the agency's
August 16, 1999 decision. Complainant seeks promotion to GS-12, a
promotion every year thereafter to GS-15, reimbursement of all legal
expenses, pain and suffering, course work fees for 24 hours of classes
related to physical science, and restoration of all leave used due to
the stress he has endured.
ANALYSIS AND FINDINGS
Any settlement agreement knowingly and voluntarily agreed to by the
parties, reached at any stage of the complaint process, is binding on both
parties. See 29 C.F.R. � 1614.504(a). A settlement agreement constitutes
a contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The parties' intent as
expressed in the contract, not some unexpressed intention, controls the
contract's construction. Eggleston v. Department of Veterans Affairs,
EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent
of the parties with regard to the terms of a settlement agreement, the
Commission generally has relied on the plain meaning rule. See Hyon
v. United States Postal Service, EEOC Request No. 05910787 (December
2, 1991). This rule states that if the writing appears to be plain
and unambiguous on its face, its meaning must be determined from the
four corners of the instrument without resort to extrinsic evidence of
any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co.,
730 F.2d 377 (5th Cir. 1984).
The Commission agrees that the agency breached provision (1) of the
agreement. Although the agency provided complainant with an assessment
of his qualifications, it failed to provide him with a list of courses
or experiences to enable him to qualify for a GS-12 Physical Scientist
position. The agency must perform the terms of the settlement agreement,
as written.
Nonetheless, the amount of time the agency required to perform the
assessment in provision (1) was reasonable. When a settlement agreement
does not provide a specific time period for the agency to execute its
terms, the Commission requires the agency to act within a �reasonable�
amount of time. See Gomez v. Department of the Treasury, EEOC Request
No. 05930921 (February 10, 1994); Parker v. Department of Defense, EEOC
Request No. 05910576 (August 29, 1991). Considering the circumstances of
the position in question, the individual's need to consult with a �subject
matter expert,� the amount of material submitted by complainant, and the
difficulty in transposing his education and experience background into a
form that could be compared against the requirements for the position,
the Commission finds that the amount of time used by the agency to
perform the assessment was not unreasonable.
The Commission also finds no �bad faith� in the manner in which the
assessment was accomplished. Complainant argues that the agency exhibited
bad faith by rejecting his offers to have someone at the Office of
Personnel Management (OPM) or the Federal Aviation Administration (FAA)
certify his ability to perform GS-12 work. The settlement agreement
does not require an OPM or FAA assessment of his qualifications. To the
contrary, it requires a �Human Resources expert at the agency� who did
not know the parties to perform the evaluation. The agency complied
with this provision, and did not breach by assigning an individual
who did not work in NOAA and was not familiar with Physical Scientist
requirements. Further, complainant's qualifications for an FAA job
other than that of a Physical Scientist does not prove that the agency
improperly evaluated his qualifications. Different positions at different
agencies, although paid at the same grade, may have different requirements
for qualification.
Complainant has argued �bad faith� since he first alleged breach.
However, for the very first time on appeal, complainant contends that
the agency's attorney promised him that he would be reimbursed for
his ERAU courses, in order to encourage him to sign the agreement.
The Commission questions the credibility of this assertion. Further,
even assuming that the comment was made, complainant was represented
by an attorney at the time he signed the settlement agreement, and was
made fully aware of his rights and responsibilities in the terms of
the agreement.<6> If complainant was already in the classes when the
agreement was signed, and wished to be reimbursed for them, he could have
negotiated to have such explicitly written into the settlement agreement.
The agreement contains no such provision.
There is no evidence that the agency failed to reimburse complainant
for any course that was �directly related to the Physical Scientist
position,� as required in provision (2). The agency's subject matter
expert explained that complainant's course work involved �technical�
classes, but not the �professional� level courses, including advanced
mathematics �as would be required of any scientist.� Complainant has
failed to prove that the courses he took at ERAU are directly related
to a Physical Scientist position. Therefore, the Commission finds no
breach, to date, of provision (2). The Commission notes, however, that
the agency will have an ongoing duty to specifically implement provision
(2) of the settlement agreement, as written.
The Commission also agrees with the agency in finding no breach of
provision (3) - under the terms of the agreement, the agency need
not present complainant with a letter of certification until it finds
complainant qualified for the GS-12 Physical Scientist position. The
agency has not found complainant qualified for a GS-12 Physical Scientist
position; therefore, it has not breached the agreement by failing to
provide complainant with the certification. If, after complying with
provision (1) of the agreement, the agency finds complainant qualified,
then it must provide the certification outlined in provision (3).
Further, the Commission finds no breach of provision (4) in the agreement.
Complainant argues that he did not apply to Physical Scientist positions
during the relevant time period, but he should have been allowed to
do so since the agency failed to abide by the agreement. According to
complainant, he may have been selected for a GS-12 Physical Scientist
position if he had not been barred from applying under this provision.
The Commission finds no merit to this assertion. Complainant has
presented no evidence that he was denied the opportunity to apply, nor
that he would have been selected for a GS-12 Physical Scientist position.
The Commission declines to review whether the agency breached provision
(7) of the agreement. The settlement itself clearly indicates that
complainant must notify the EEO Director, in writing, within thirty days
of any noncompliance of the agreement. Further, EEOC Regulations require
complainant to raise claims of breach within thirty (30) calendar days
of their occurrence. See 29 C.F.R. � 1614.504(a). Complainant failed
to provide any written notice of breach until March 30, 1999, and did
not reference any noncompliance with provision (7) in the March 30,
1999 notice. Even assuming that complainant raised this specific claim
in the March 30, 1999 notice, it still would be untimely.
Complainant spends considerable effort on appeal describing how coworkers
follow him around and �take notes� for inclusion in his personnel files.
This activity is not within the scope of the settlement agreement.
Provision (8) of the agreement merely provides that the agency must purge
all references to his prior EEO complaints. Complainant has presented no
evidence to suggest that any reference to his EEO complaints is contained
in agency records concerning complainant.
Finally, complainant seeks compensatory damages, and a promotion to GS-12,
among other things, to remedy the breach. Only two avenues of relief
are available to complainant where the agency has breached a settlement
agreement: compliance with the agreement, or reinstatement of the
underlying complaints. See 29 C.F.R. � 1614.504(c). Complainant is not
entitled to any relief apart from our Order herein requiring enforcement
of the settlement agreement. See Allen v. Department of the Interior,
EEOC Request No. 05970352 (August 11, 1999) (citing Kessler v. United
States Postal Service, EEOC Request No. 05970446 (February 26, 1999)
and Martin v. Department of Defense, EEOC Request No. 05940745 (August
24, 1995) (finding compensatory damages unavailable for findings of
settlement breach).
CONCLUSION
Accordingly, the agency's decision, finding breach in provisions (1)
and (2) of the June 29, 1998 settlement agreement, ordering specific
performance of the agreement, but otherwise finding no breach, is
MODIFIED, and the matter is REMANDED for further processing in accordance
with the Order provided herein.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency must comply with the terms of the settlement agreement,
as written. To exhibit its compliance, the agency must provide
complainant and the Compliance Officer, referenced herein, with a copy
of the individualized assessment, a list of courses complainant should
take to qualify for a GS-12 Physical Scientist position, and a copy
of correspondence arranging the information session required by the
settlement agreement.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
February 11, 2002
__________________
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, revisions to the regulations governing the
EEO process went into effect. These �new� regulations applied to all
complaints at any stage of the administrative process. As a result of the
new regulations, partial dismissals were not appealable to the Commission.
See 29 C.F.R. � 1614.107(b).
2Complainant, through his attorney, argues that the Commission must
address one claim that the agency dismissed for stating the same claim
previously raised in a negotiated grievance process. The Commission
declines to do so; the Administrative Judge has the authority to decide
whether the dismissal was proper, and complainant will have an opportunity
to appeal to the Commission after a final decision is reached on all
of the claims raised in the complaint. See 29 C.F.R. � 1614.107(b);
29 C.F.R. � 1614.109(b)
3As referenced above, the agency also addressed the acceptance or
dismissal of numerous claims brought by complainant in its August 16,
1999 decision. These claims were remanded to an Administrative Judge,
and therefore are not pending in the present appeal.
4Complainant also alleged that the agency's failure to reimburse him for
these classes, regardless of the settlement agreement, constituted a new
claim of discrimination. The Commission will not address this claim in
the present appeal decision.
5Nonetheless, the decision ordered the agency to provide complainant with
the letter of certification described in provision (3) of the settlement
if he is found qualified for the GS-12 Physical Scientist position.
The agency also authorized an award of attorney's fees. The agency made
no mention of provision (4) in its decision.
6The terms of the agreement complied with all notice requirements under
the Older Workers Benefit Protection Act (OWBPA).