01A14132_r
06-12-2002
Marketta M. Nelson, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Marketta M. Nelson v. Department of State
01A14132
June 12, 2003
.
Marketta M. Nelson,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A14132
Agency No. 00-71
DECISION
Complainant filed a timely appeal with this Commission from the
agency's May 23, 2001 determination that it was in compliance with
the terms of the February 23, 2001 settlement agreement into which the
parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(4c) Retroactive Detail: Within 30 days of the effective date of this
Agreement, the Department will cut a Notice of Personnel Action (SF-50)
reflecting that the complainant was detailed to a GS-09 Secretary
position from November 1, 1998 through November 21, 1999.
(4d) Back Pay: Within 30 days of the effective date of this agreement,
the Department will pay to the Complainant all back pay and benefits less
amounts actually received or accrued as a result of her employment by the
Department, plus interest if and to the extent permitted by applicable
federal law, which have accrued if Complainant had been detailed to a
GS-09 Secretary position from November 1, 1998 through November 21, 1999.
(Back pay and benefits shall be calculated under the Back Pay Act, 5
U.S.C. 5596, and accompanying regulations at 5 C.F.R. 550.801 et seq.,
and shall be subject to the provisions of 29 C.F.R. 1614.501.)
By letter to the agency dated April 23, 2001, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to pay her the attorney's fees and back
pay owed under the agreement.
In a letter dated May 23, 2001, the agency concluded that it did not
breach the agreement. The agency noted that it had paid complainant
attorney's fees in the amount of $7,194.25. The agency also stated
that it was forwarding to complainant a copy of a document illustrating
back pay and interest calculations used to determine the amount owed to
complainant for her retroactive promotion to GS-9 secretary. On appeal,
complainant states that the agency has paid her the appropriate attorney's
fees, but has yet to pay her the promised back pay.
In the instant matter, the Commission is unable to ascertain from the
record whether the agency breached the agreement. On appeal, the agency's
only submission on the issue of back pay is a cryptic document ostensibly
reflecting complainant's pay for pay periods in 2000 and 2001. However,
the record does not indicate if the agency has properly calculated the
back pay and benefits due to complainant as a GS-09 secretary from
November 1, 1998 until November 21, 1999, offset by the salary and
benefits complainant actually received during this period.<1> Moreover,
the agency failed to supplement the record with any evidence that it has
in fact paid complainant back pay and benefits due under the agreement,
such as a copy of the check tendered to complainant for the sum of back
pay owed. In light of the deficiencies in the record, the Commission
VACATES the agency's finding of no settlement breach and REMANDS this
matter to the agency for a supplemental investigation in accordance with
the Order below.
ORDER
The agency is ORDERED to take the following action:
The agency shall conduct a supplemental investigation regarding
whether it breached the instant settlement agreement. Specifically,
the agency shall explicitly calculate the amount of salary and benefits
complainant is owed as a GS-9 secretary from November 1, 1998 until
November 21, 1999, offset by the amount paid to complainant during that
same period of time. The agency shall provide a copy of any check made
to complainant pursuant to its obligation to pay back pay and benefits
under the agreement. Within thirty (30) calendar days of the date that
this decision becomes final, the agency shall determine, in writing,
whether or not the settlement agreement has been breached. See 29
C.F.R. � 1614.504(b). The agency shall supplement the record with
any other relevant documentation supporting its determination, along
with a precise explanation of what is reflected in such documentation.
A copy of the new decision must be sent to the Compliance Officer as
referenced below.
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
__June 12, 2002________________
Date
1We note that the record contains documents
(SF-50s) indicating that the agency retroactively promoted complainant to
a GS-9 secretary position from November 1, 1998 until November 21, 1999.
However, these documents do not reflect that complainant received back
pay and benefits owed for the retroactive promotion.