David J. Adams, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 24, 2007
0120062571 (E.E.O.C. May. 24, 2007)

0120062571

05-24-2007

David J. Adams, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.


David J. Adams,

Complainant,

v.

Mike Johanns,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01200625711

Agency No. 040225

DECISION

Complainant filed an appeal with this Commission when the agency did not

respond to his claims that it had breached the terms of the November 17,

2005 settlement agreement into which the parties entered. See 29 C.F.R. �

1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that:

(1) The agency shall execute a SF-52 to reclassify complainant to

a Supervisory Equal Opportunity Specialist in his existing position as

Special Assistant to the Director of the Farm Service Agency Office of

Civil Rights. Complainant's newly classified position will not involve

supervision of employees on a permanent basis within Farm Service Agency's

Office of Civil Rights. Complainant's duties must be consistent with

the Position description attached to this agreement. The agency also

agrees to pay Four Thousand Dollars ($4,000.00) in attorney's fees no

later than 45 days from the date the complainant signs this agreement

and Complainant's attorney makes his tax identification number available

to the agency.

By letter to an EEOC Administrative Judge dated February 9, 2006, with a

copy sent to the agency, complainant alleged that the agency was in breach

of the settlement agreement, and requested that the agency specifically

implement its terms. Specifically, complainant alleged that the agency

failed to complete the personnel action and failed to pay the attorney's

fees.

There is no indication that the agency ever responded to complainant's

breach of the settlement agreement. In addition, although informed

by the Commission of the instant appeal, the agency did not send any

material to the Commission indicating that it was in compliance with

the settlement agreement. Because of the agency's failure to provide

any information showing that it was in compliance with the agreement,

the Commission finds that the agreement has been breached and is ordering

specific performance as set forth below:

ORDER (C0900)

The agency is ordered to take the following remedial action:

I. The agency shall execute a SF-52 to reclassify complainant to a

Supervisory Equal Opportunity Specialist in his existing position as

Special Assistant to the Director of the Farm Service Agency Office of

Civil Rights within 30 days of the date this decision becomes final.

II. Complainant's newly classified position will not involve supervision

of employees on a permanent basis within Farm Service Agency's Office of

Civil Rights. Complainant's duties must be consistent with the Position

description attached to this agreement.

III. The agency shall pay Four Thousand Dollars ($4,000.00) in attorney's

fees no later than 30 days from the date this decision becomes final and

Complainant's attorney makes his tax identification number available to

the agency.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

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

May 24, 2007

__________________

Date

1 Due to a new Commission data system, this case has been redesignated

with the above-referenced appeal number.

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0120062571

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120062571