01a45298r
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