01A45298
12-22-2005
Eric Escalante, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Eric Escalante,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A45298
Agency No. 01-60241-003
DISMISSAL OF APPEAL
Complainant entered into a settlement agreement with the agency on
September 30, 2003, wherein the agency agreed, in pertinent part, that
it will:
8. Provide a memorandum, signed by the Commanding Officer (to be filed
in the Complainant's Official Personnel File) guaranteeing Complainant
first consideration for attendance at the Fire Officer III course provided
at the Fire College at the University of Alabama, Birmingham, Alabama,
plus reimbursement of air travel and standard per diem for meals and
lodging, when the training monies become available for that training.
The Fire Chief shall promptly request funding for this training when
requested by Complainant. The Command shall promptly inform the Fire
Chief whether funds are available, but if no funds are available, the
Command will provide a written explanation to the Fire Chief stating the
reasons why such funds are not available. The Fire Chief shall provide
the Complainant with a copy of such statement. In the alternative, the
Complainant shall have the option of completing the training on duty
time under no-cost orders and seeking reimbursement on the same basis
as stated herein.
The record reveals that in a letter dated March 3, 2004, the agency
informed complainant and an agency official that additional funding was
not available for complainant. The letter stated that complainant could
attend the training at his own expense and later request reimbursement
by the agency. The letter further stated that there was no guarantee
complainant would be reimbursed because of a lack of funding. In a
letter to the Fire Chief dated March 15, 2004, complainant requested
funding so that he could attend a Fire Officer course scheduled for July
26 - 30, 2004. In a letter to the Fire and Emergency Services Program
Director and the Kingsville Fire Chief dated June 1, 2004, complainant
requested funding to attend the training described in provision 8 and
asked for the name of the person responsible for ensuring he would be
sent to the promised training. Complainant also informed the agency
that if no one responded to his letter within thirty days, he would
appeal the matter to the Commission as a breach claim. On July 28,
2004, complainant filed the instant appeal to the Commission, alleging
that the agency breached provision 8.
In a letter dated September 1, 2004 to the agency, complainant alleged
that the agency's failure to respond to his June 2004 letter constituted
breach of provision 8 and again requested to be sent to the Fire Officer
School at the Alabama Fire College. Complainant also informed the agency
that he had filed an appeal on the matter with the Commission.
On appeal, the agency contends that complainant's instant appeal should
be dismissed because complainant failed to properly notify the agency
of his noncompliance claim within 30 days after he was aware of the
alleged noncompliance. The agency contends that complainant's June 1,
2004 letter was not a notice of alleged noncompliance because it did
not allege breach of the agreement. The agency concluded that because
complainant did not allege breach to the agency's EEO Director within
30 days after the agency failed to respond to his June 1, 2004 letter,
his breach claim should be dismissed as untimely raised.
Section VIII of the settlement agreement states that all breach
claims must be raised in writing to the agency within 30 calendar
days of the date complainant knew or should have known of the alleged
non-compliance. The section further stated that if the agency did not
respond to complainant in writing, complainant may appeal the matter to
the Commission for a determination.
Upon review of this matter, we first note that complainant's June 1,
2004 letter to the agency stated that he would consider the agency in
breach of provision 8 if it did not respond to his letter within 30 days.
Therefore, we find that complainant knew of the alleged noncompliance
by July 1, 2004. Complainant appealed the matter to the Commission on
July 28, 2004, instead of properly notifying the agency's EEO Director
of his breach claim within 30 days of July 1, 2004, as provided in
29 C.F.R. � 1614.504(a). Section VII apprized complainant that all
breach claims must be raised in writing to the agency within 30 days of
the date complainant knew or should have known of the alleged breach.
Complainant did not raise the matter with the agency until September 1,
2004, well beyond 30 days after he knew of the alleged non-compliance.
Therefore, we find that complainant's breach claim was untimely raised.
Accordingly, the Commission DISMISSES complainant's appeal.
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
_December 22, 2005_________________
Date
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01A45298
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A45298