Kenneth B. Jones, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 20, 2003
01a31984_r (E.E.O.C. Oct. 20, 2003)

01a31984_r

10-20-2003

Kenneth B. Jones, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Kenneth B. Jones v. Department of the Air Force

01A31984

October 20, 2003

.

Kenneth B. Jones,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A31984

Agency No. AL900030445

DECISION

Upon review, the Commission finds that the agency's decision not to

reinstate complainant's complaint of unlawful employment discrimination

that the parties had settled is proper. See 29 C.F.R. � 1614.504.

On October 26, 2000, the parties entered into a settlement agreement

resolving the complaint. The settlement agreement provided, in pertinent

part, that the agency agreed to:

a. Provide complainant plastic media and advanced composite preparation

training on a first priority basis.

Schedule complainant for alternative dispute resolution (ADR) training

on or before January 31, 2001.

Give complainant a one-time priority consideration for any and all

wage leader (WL-09) position(s) for which qualified on Altus Air Force

Base (AFB), Oklahoma. Complainant will be advised by [an identified]

Civilian Personnel Officer (or her designee) on Altus AFB when this

priority consideration will be accomplished.

On December 17, 2002, complainant alleged that the agency breached

provisions 2.a and c of the settlement agreement. Specifically,

complainant indicated that he was not allowed to attend a plastic media

class offered in the summer of 2001 in Pensacola, Florida, and he was

not given priority consideration when a WL-4102-09 became available.

On January 13, 2003, the agency issued its decision finding that it

did not breach the settlement agreement. The agency, undisputed by

complainant, indicated that according to its training manager, the alleged

training class was never held in that year or any other years since 1996.

With regard to the alleged nonselection, the agency stated that according

to a Civilian Personnel, she notified complainant of the priority position

at issue being available and that he was to receive priority consideration

for the position. The record clearly indicates that complainant was

given priority consideration for the position at issue on October 21,

2002, but he was not selected. In response to complainant's breach claim,

an agency official stated in his letter dated February 7, 2003, that he

did give complainant priority consideration prior to other consideration

of nominations for the position at issue. The official further stated

that complainant was not selected for the position at issue since in

February 2002, his security badge was removed after the expiration of

his security clearance waiver, limiting his ability to perform the duties

of the position at issue. Based on the foregoing, the Commission finds

that the agency did not breach the settlement agreement.

Accordingly, the agency's decision is hereby AFFIRMED.

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

October 20, 2003

__________________

Date