01A14601_r
04-08-2002
Estate of Wayne Brooks, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Estate of Wayne Brooks v. Department of Agriculture
01A14601
April 8, 2002
.
Estate of Wayne Brooks,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A14601
Agency No. 95031
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 5, 2001, finding that it was in compliance with
the terms of the August 18, 1998 settlement agreement entered into by
the parties. The issue on appeal is whether the agency complied with
the settlement agreement.
The settlement agreement provided, in pertinent part, that the agency
agrees to:
Upon complainant's retirement on the date of his choosing, or upon the
date of complainant's death, whichever comes first, promote complainant
retroactively for a period of two and one half (2 �) years at the
GS-15 Step 10 salary level, with the salary levels utilized being those
that are and have been actually in effect at the date of complainant's
retirement or death, whichever comes first, and the two and one half (2 �)
years immediately preceding it. Complainant and agency understand and
agree that this provision is intended to and shall effectively raise
complainant's high three-year average for purposes of computing his
retirement/survivorship benefits. Nothing in this agreement forecloses
agency from making lawful withholdings, such as federal taxes, from
payments of retirement/survivorship benefits to complainant and/or
his spouse.
By letter to the agency dated April 17, 2000, complainant claimed
that the agency failed to comply with the settlement agreement, when,
on March 31, 2000, complainant was informed by the agency that the
retirement portion of his settlement agreement, provision 1, would not
be honored. Complainant requested that the agency specifically implement
the terms of the agreement.
In its November 5, 2001 decision, the agency concluded that complainant's
appeal, filed on July 20, 2001, was premature, as none of the conditions
for the implementation of provision 1 of the settlement agreement,
complainant's retirement, or death, had been fulfilled at that time, and,
complainant's noncompliance claim should be dismissed. The agency added,
however, that upon complainant's death on September 8, 2001, the agency
began implementing the agreement.
Upon review, the Commission finds that despite any concerns by the
agency that complainant's claim of noncompliance was premature,
complainant's claim is now ripe for adjudication. In its November
5, 2001 dismissal, the agency claims that it began implementing the
agreement upon complainant's death on September 8, 2001. The record,
however, does not contain any evidence supporting the agency's claim
that it has complied with provision 1 of the settlement agreement.
Therefore, the agency's decision is VACATED and the matter is REMANDED
for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to supplement the record with evidence showing
whether it has complied with provision 1 of the settlement agreement.
The agency will issue a new decision addressing complainant's
noncompliance claim within thirty (30) calendar days of the date this
decision becomes final. A copy of the new decision must be sent to the
Compliance Officer, as referenced herein.
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
April 8, 2002
__________________
Date