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.
??
??
??
??
2
0120062571
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120062571