0520120640
02-08-2013
Cynthia L. Barnes, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Cynthia L. Barnes,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520120640
Appeal No. 0120121532
Agency No. 9B1C10001
DENIAL
Complainant timely requested reconsideration of the decision in Cynthia L. Barnes v. Department of the Air Force, EEOC Appeal No. 0120121532 (August 8, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
In the underlying case, Complainant alleged that the Agency was in breach of a settlement agreement entered into on November 15, 2011 to resolve an underlying EEO matter. The settlement agreement provided in relevant part:
(2) The Agency will adjust Complainant's duty status from termination without prejudice to a paid non-work status from 18 September 2010 to 14 November 2011, and shall be awarded back pay ($29,263.97) for this period as if she were still employed during that time subject to all the standard deductions from her pay.
Complainant alleged that the Agency was in breach of the settlement agreement because the award of back pay included non-standard deductions for health insurance for the period of September 18, 2010 to November 14, 2011. The Agency argued that it has fully complied with the terms of the agreement. Specifically the Agency argued that Complainant's back pay award included al the deductions that were part of her last paycheck, which included payments for healthcare benefits. Additionally, the Agency pointed to provision 6 of the agreement which provides that Complainant will be allowed to retain her health insurance benefits during her LWOP status, and that she was responsible for the employee portion of the premium. The Appellate decision found that the Agency's decision was proper, holding that Complainant failed to demonstrate that the Agency breached the November 15, 2011 settlement agreement.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant requests that the Commission reconsider its appellate decision and find that the Agency breached the settlement agreement. Complainant reiterates her arguments from her appeal to support her contention that the Agency breached the agreement.
ANALYSIS AND FINDINGS
Complainant is reminded that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9 � VII.A. (Nov. 9, 1999). Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, the Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Neither has Complainant argued or demonstrated that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120121532 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
_____2/8/13_____________
Date
2
0520120640
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120640