0120082950
12-03-2008
Louis Vaughns, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Louis Vaughns,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120082950
Agency No. 030112
DECISION
Complainant filed an appeal with this Commission from a final decision
(FAD) by the agency concerning its compliance with the terms of the
November 8, 2005 settlement agreement into which the parties entered.
Briefly, the settlement agreement provided that the agency would pay
complainant $3,000 within 45 days of the date all signatures were
obtained to implement the agreement. Complainant filed a breach of
settlement agreement claim with the Commission in January 2006. In Appeal
No. 0120061650 (May 9, 2007), the Commission found that complainant should
have filed his claim with the agency, and directed the agency to gather
the information related to the claim and to issue a final decision on
the matter.
On April 11, 2008, the agency issued a decision finding that it had
not complied with the agreement. The agency indicated that it sought
the information from Farm Service Agency (FSA), but that FSA did not
respond to its request. Thus, the agency's Office of Adjudication and
Compliance ordered the agency to pay complainant the money owed.
However, with its copy of the FAD, the agency also sent the EEOC's
Compliance Officer a copy of a "routing and transmittal slip" also dated
April 11, 2008, wherein FSA appears to assert that it paid complainant
the monies owed during the month of January 2006. Included was an unsigned
payroll action request and a Xerox copy of an "adjustment detail."
In his appeal, complainant appears to assert he was not paid. However,
the Commission is confused by the agency's finding that it was not in
compliance with the settlement agreement, and then the submission of
documents stating that the money was paid in 2006. Thus, the Commission
is remanding the matter for a determination by the agency as to whether
the money was paid or if complainant is entitled to the money as set forth
in the agency's decision of April 11, 2008. Further, because it took the
agency nearly a year to comply with the Order in Appeal No. 0120061650
in disregard of the time frames therein, the agency is on notice that in
the event it does not issue a decision within 30 days of the date this
decision becomes final, the agency's decision of April 11, 2008 finding
that it was not in compliance with the settlement agreement shall become
the agency's decision.
ORDER
The agency is ordered to take the following action:
Within 30 days of the date this decision becomes final, the agency shall
issue a final agency decision with appeal rights to the Commission,
as to whether complainant has been paid the $3000.00 or not. The agency
shall supplement the record with all documentation , including
affidavits, pertaining to the alleged breach.
The agency is on notice that in the event it does not issue a decision
within 30 days of the date this decision becomes final, the agency's
decision of April 11, 2008 finding that it was not in compliance with
the settlement agreement shall becomes the agency's final decision and
it shall pay complainant $3000 as ordered therein.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (R0408)
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 (Z1008)
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
December 3, 2008
__________________
Date
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0120082950
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082950