0520120229
05-02-2012
Mathias Ntembo Konge, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Mathias Ntembo Konge,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Request No. 0520120229
Appeal No. 0120113172
Agency No. AAFES261010
DENIAL
Complainant timely requested reconsideration of the decision in Mathias Ntembo Konge v. Army & Air Force Exchange Service, EEOC Appeal No. 0120113172 (December 8, 2011). 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 appellate decision, Complainant and the Agency entered into a settlement agreement which provided in pertinent part, that:
(2a) [Complainant] will receive an additional 20 hours of hands on one-on-one training provided by either an assigned supervisor and or manager related to computer use. AAFES internet and cash register operations. [Complainant] will be required to sign a training roster upon completion of each training session. The training period will begin on or about 01 October 2010 and will be completed no later than 30 November 2010.
(2c) AAFES will conduct EEO training for all employees within the branch where
[Complainant] is assigned within 60 days from the date of his agreement.
Complainant alleged that the Agency breached the agreement. The Agency concluded that it was not in breach of the agreement. The Commission affirmed the Agency's finding. The Commission noted that the evidence showed that Complainant was given the 20 additional hours of training promised. The Commission also found that the record showed that the EEO training was held and that even though it was not within the time frame promised, the delay was de minimus.
REQUEST FOR RECONSIDERATION
In Complainant's request for reconsideration, he maintains that the settlement agreement as drafted was "one sided." He contends that the agreement favored the Agency and was ambiguous. Complainant maintains that the "Master Agreement" of the Agency supersedes all other side agreements like his settlement agreement. Further, Complainant asserts that he has suffered additional harassment and was ultimately served a notice of separation which was later changed to a seven day suspension without pay. Complainant requests that the Agency treat him fairly and as part of the Agency family.
The Agency requests that the appellate decision be upheld.
ANALYSIS AND FINDINGS
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 Commission finds that Complainant failed to show 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. Further, the Commission notes that EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. We find, based on the Commission's regulations and case precedent, that Complainant has not provided an adequate justification for setting the settlement agreement aside nor has he shown that the Agency breached the agreement. Accordingly, the decision in EEOC Appeal No. 0120113172 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
___5/2/12_______________
Date
2
0520120229
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120229