01a10276_r
03-22-2002
Andrew J. Hocker, Jr., Complainant, v. Sean O'Keefe, Administrator, National Aeronautics and Space Administration, Agency.
Andrew J. Hocker, Jr. v. National Aeronautics and Space Administration
01A10276
March 22, 2002
.
Andrew J. Hocker, Jr.,
Complainant,
v.
Sean O'Keefe,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01A10276
Agency Nos. NCN-95-ARC-A015, NCN-96-ARC-A040 & NCN-97-ARC-A027
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaints of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
The record indicates that on January 7, 1999, the parties entered into
a settlement agreement which provided, in pertinent part, that:
The Agency affirmatively represents and agrees to
Promote the aggrieved employee to GS-13 step 10. This promotion will
take effect on the date of signed agreement.
Assign aggrieved employee to a permanent position in Code Q. Employee
will be physically located in the organization's main safety building
during employee' tenure, currently N218. Reassignment will take effect
on the date of the signed agreement.
Provide training opportunities at the selected school or university
that are job or organization related, and in the field of the employee.
The employee will be allowed to attend such training during official
NASA hours and will be reimbursed for all school expenses.
Assign employee to a key Ames SEMA Board.
Assign as an ISO internal auditor, for a minimum of 20 days per year,
to the Ames audit activity.
Give the employee a lump sum payment of 40,000 (forty thousand dollars).
Purge all negative documentation in all personnel records.
Thereafter, on April 14, 2000, complainant, through filing a formal
complaint, alleged that the agency breached item 1.d. of the settlement
agreement. Specifically, complainant indicated that although he was
assigned to the Explosive Safety Committee, it was inactive and did
not have any meetings and had little or no interaction with the Safety
Organization.
On August 17, 2000, the agency issued its decision finding no settlement
breach. Specifically, the agency submitted a statement from an Acting
Director of SEMA Directorate, dated June 26, 2000, indicating that
although the SEMA Board was inactive because the level of Center activity
did not necessitate SEMA Board meetings or actions, its inactivity did
not mean that it was not a key committee but only that there was no
requirement that the Board meet. The Acting Director noted that Center
Committees and Boards operated on an �as required basis� and they were
a function of the activities which were occurring at the Center.
Initially, the Commission notes that the agency properly processed
the alleged noncompliance as a settlement breach case, instead of a
new individual complaint, under the regulations. After a review of
the record, the Commission finds that the agency did not breach item
1.d. of the settlement agreement. Although complainant alleged that
his assignment under item 1.d. was not active and viable, the settlement
agreement does not specifically provide therefor. The Commission notes
that complainant does not dispute that the agency breached any remaining
items of the settlement agreement. Accordingly, the agency's decision
is hereby affirmed.
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
March 22, 2002
__________________
Date