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