0120080957
03-20-2008
Donald C. Walsh, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Donald C. Walsh,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120080957
Agency No. HS-07-TSA-001372
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated November 9, 2007, finding that it was in compliance with
the terms of a September 18, 2006 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; .405; and .504(b).
The parties were at the hearing stage when they reached settlement.
On September 18, 2006, an EEOC Administrative Judge (AJ) allowed the
settlement agreement provisions to be read into the record. Subsequently,
the AJ dismissed complainant's claim. In pertinent part, the settlement
agreement provided that:
[T]he agency agrees to credit the complainant's promotion to
supervisory transportation security screener retroactive to October
21, 2003 notwithstanding the retroactive date of the implementation
of his title, however, the complainant understands and the parties
agree that he shall not be entitled to any back pay as a result of
the agreement.
The agency also agrees to credit the complainant's official time
and attendance record with 25 additional hours of sick leave. . . .
[T]he agency understands that the complainant, by signing this
agreement, the complainant agrees he is withdrawing with prejudice
any and all EEO complaints and informal claims . . . up to and
including the date of the execution of this agreement.
In a formal complaint dated April 4, 2007, complainant alleged: "Failure
to implement EEO settlement of 9/18/06. Contacted [agency representative
(S1)] Jan 2007 - she has not responded." In the corrective action section
of the complaint, complainant requested "immediate implementation of
settlement."
In its November 9 final decision, the agency found that complainant
improperly filed a new complaint as if he were alleging a subsequent
act of discrimination rather than an allegation of breach. The agency
noted that complainant was informed of the procedures regarding breach
allegations and that he has to request either reinstatement of his
underlying complaint or seek specific enforcement of the agreement.
The agency dismissed complainant's claim. The instant appeal from
complainant followed.
On appeal, complainant stated that his allegation is that S1 purposely
failed to initiate paperwork to execute the terms of his settlement.
Complainant added that S1 was hostile and argumentative during contact,
and that his complaint is an individual claim against S1 for reprisal
and not the agency.
The federal sector EEO complaint process does not permit the filing of
discrimination or retaliation claims against individual agency employees
rather than the agency itself. Therefore, we conclude that a fair reading
of complainant's April 4 complaint is as an allegation of noncompliance
with the September 2006 settlement agreement, requesting specific
implementation of the agreement, and the agency should have considered
it as such. The record herein does not contain sufficient information
or a written response from the agency regarding its actions to comply
with the agreement. Therefore, we VACATE the agency's procedural final
decision and REMAND the matter to the agency for a written response to
complainant regarding its actions consistent with 29 C.F.R. � 1614.504.
ORDER
The agency is ordered to process complainant's complaint as an allegation
of noncompliance and to resolve the matter and respond to the complainant
in writing within 35 days of receipt of this decision. The agency shall
process the instant allegation in accordance with 29 C.F.R. � 1614.504.
Complainant shall also act within the confines of 29 C.F.R. � 1614.504
regarding the instant breach allegation.
A copy of the agency's final determination (written response) must be
sent to the Compliance Officer as referenced below.
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
March 20, 2008
__________________
Date
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0120080957
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080957