0520130469
09-27-2013
James G. Hamilton, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
James G. Hamilton,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520130469
Appeal No. 0120130367
Hearing No. 531-2011-00114X
Agency No. AFCARO-0U1R-02H11
DENIAL
Complainant timely requested reconsideration of the decision in James G. Hamilton v. Department of the Air Force, EEOC Appeal No. 0120130367 (April 9, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the underlying case, Complainant alleged that the Agency failed to comply with the terms of a May 14, 2012 settlement agreement. Specifically, Complainant alleged that the Agency breached: (i) provisions B, C, and D regarding the payment of back pay; (ii) provision E regarding the restoration of leave; (iii) provision K regarding the removal of documents from his Official Personnel File; and (iv) provision Q regarding the time frames for complying with the settlement agreement.
Provision Q ("Deadlines") stated, in pertinent part, that:
1. The Agency shall complete the terms of the agreement ... within 60 days of its effective date, as to the terms over which it has exclusive control.
2. The Agency shall make best efforts to have the Defense Finance Accounting Center (DFAS) ... make all payments for back pay ... within 60 days, but Complainant acknowledges that because DFAS is not within Agency control, that DFAS' failure to meet a 60-day deadline will not be considered a material breach of this agreement. In the event that DFAS has not tendered payment as specified in the agreement within 120 calendar days, the Agency agrees that, after receipt of notice by Agency counsel ... from Complainant and/or his counsel of DFAS' nonpayment, the Agency will make contact with an appropriate point of contact at DFAS to notify DFAS of this nonpayment and to encourage DFAS to expedite completion of the payment.
The appellate decision vacated the Agency's determination that it complied with provisions B, C, and D, and remanded the back pay matter to the Agency for a supplemental investigation to develop an adequate factual record regarding compliance with those provisions. The appellate decision affirmed the Agency's determination that it complied with provisions E, K, and Q. Regarding provision Q, the appellate decision noted Complainant's contention that the Agency failed to comply with its obligations in a timely manner. The appellate decision, however, found that the provision specifically addressed the issue of time limits and that the provision language plainly stated that failure to meet the deadlines would not constitute a material breach of the settlement agreement.
In his request for reconsideration, Complainant argued that the appellate decision involved a clearly erroneous interpretation of material fact and law when it determined that the Agency complied with provision Q of the settlement agreement.1 Specifically, Complainant asserted that, as evidenced by the appellate decision's remand of the back pay matter to the Agency for a supplemental investigation, the Agency unreasonably delayed its full compliance with the back pay provisions for almost one year. In addition, Complainant asserted that the appellate decision mischaracterized provision Q; the provision provided only that the failure of DFAS to meet a 60-day deadline would not constitute a material breach. Complainant clarified that he was not alleging that DFAS failed to meet a 60-day deadline; instead, he was alleging that the Agency failed to comply with the back pay provisions of the settlement agreement within a reasonable amount of time.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant failed to show that the appellate decision clearly erred in determining that the Agency complied with provision Q of the settlement agreement. Provision Q required the Agency to: (i) complete the terms of the settlement agreement over which it has exclusive control within 60 days of its effective date; (ii) make best efforts to have DFAS make all payments for back pay within 60 days; and (iii) contact DFAS about any nonpayment (if no payment within 120 days and after notice from Complainant) and encourage DFAS to expedite completion of the payments. The burden is on the requesting party to make a substantial showing that its request meets one of two prerequisites for a granting of reconsideration. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, VII.B.2 (Nov. 9, 1999). Complainant has not met his burden of establishing in his request for reconsideration that the Agency did not adhere to those requirements under provision Q. To the extent Complainant argued that the Agency "has still not fully complied with the back pay provisions" in the settlement agreement, we emphasize that the appellate decision did not make a determination regarding whether the Agency complied with provisions B, C, and D regarding back pay and instead remanded the back pay matter to the Agency for a supplemental investigation.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120130367 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ordered to:
1. Conduct a supplemental investigation to develop an adequate factual record regarding compliance with provisions B, C, and D of the May 14, 2012 settlement agreement. Specifically, the Agency shall obtain evidence which addresses whether:
a. Complainant was paid NSPS bonuses for NSPS years 2008-2010, as required in provision B(4);
b. The relevant personnel factions, set forth in provision C, are reflected in the Agency's calculations;
c. LEAP payments are included in the Agency's calculations; and
d. Appropriate deductions were made, pursuant to provision D.
Such evidence may include, but is not limited to, affidavits from Human Resources officials familiar with Complainant's agreement and necessary calculations and reports illustrating the necessary computations.
2. Complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
____9/27/13______________
Date
1 Complainant stated that he was not requesting reconsideration of the appellate decision's remand of the back pay matter (provisions B, C, and D) to the Agency for a supplemental investigation.
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0520130469
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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