01A04816_r
03-01-2002
Bennie L. Gullette, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Bennie L. Gullette v. Department of Defense (Defense Commissary Agency)
01A04816
March 1, 2002
.
Bennie L. Gullette,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A04816
Agency No. 99DCW16E024
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated June 16, 2000, finding that it was in
compliance with the terms of the September 16, 1999 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
The DeCA Western Pacific Region agrees to . . . :
adhere to rules and regulations governing equal opportunity, equity,
and fairness for all employees;
withdraw counseling letter and dismiss all other pending action(s)
against [complainant];
assurance of a hostile-free work environment and no reprisal actions
against [complainant] for participating in the EEO process;
The first-level supervisor and lead cashier will cease alleged harassment
of the complainant.
By contact with the EEO office on May 15, 2000, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency was harassing him and treating him
unequally and made the following claims: 1) a sales store clerk had been
working in the �cash cage� for two years and was never required to work
on the register; 2) Filipino sales store checkers were allowed to leave
their registers and take longer breaks and lunch periods than he is
allowed to take; 3) a sales store checker takes time off without charge
to leave [and he is not allowed to]; 4) employees are allowed to waste
time but he is required to work through his entire shift; 5) management
refused to allow him to cross train; 6) the Customer Service Supervisor
would not allow him to return to work without a doctor's statement; 7)
management had another employee follow him when he goes to the washroom;
and 8) Filipino employees are treated with favoritism by management and
allowed to have parties and not work but Black employees are not allowed
to have parties.
In its June 16, 2000 decision, the agency concluded that the settlement
agreement had not been breached. The decision found that there was no
evidence that complainant was treated differently from other employees.
On appeal, complainant, in multiple submissions, asserts additional
incidents of agency harassment and reprisal in violation of the agreement.
In a July 31, 2000 submission, complainant contends that he was issued a
�letter of concern� and that he received a lowered performance appraisal.
In a December 1, 2000 letter, complainant also contends that Filipino
employees were given choice assignments, worked without supervision,
and were given training while he was given demeaning tasks and denied
similar opportunities for advancement.
EEOC regulation 29 C.F.R. � 1614.504 provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, he may request that the terms of the agreement
be specifically implemented, or, alternatively, that the complaint be
reinstated for further processing. However, the Commission has held
that a complaint which alleges reprisal or further discrimination in
violation of a settlement agreement's "no reprisal" clause, is to be
processed as a separate complaint and not as a breach of settlement.
Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990). In addition, EEOC regulations stipulate that any
allegations that subsequent acts of discrimination violate a settlement
agreement are to be processed as separate complaints. 29 C.F.R.�
1614.504(c).
In the instant case, all of complainant's breach claims, including
those on appeal, concern allegations of discrimination in violation of
the settlement agreement's "no reprisal" clause or allege new acts of
discrimination occurring subsequent to the settlement agreement. All of
complainant's claims must therefore be processed as separate claims
of discrimination and not as a breach of settlement. Consequently,
complainant is advised that if he wishes to pursue, through the EEO
process, the claims initially raised with the agency in his May 15, 2000
contact, as well as those raised for the first time on appeal, he shall
initiate contact with an EEO Counselor within 15 days after he receives
this decision. The Commission advises the agency that if complainant
seeks EEO counseling regarding the new claims within the above 15-day
period, the May 15, 2000 date complainant raised these claims with the
agency, and the (above stated) subsequent dates his claims were raised
on appeal, shall be deemed to be the dates of the initial EEO contact
for each claim unless he previously contacted a counselor regarding
these matters. Cf. Alexander J. Qatsha v. Department of the Navy,
EEOC Request No. 05970201 (January 16, 1998).
Accordingly, as complainant has failed to allege any matter appropriately
addressed as a breach of settlement, the agency's decision finding no
breach of the settlement agreement is 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 1, 2002
__________________
Date