01983243_r
06-02-1999
Robert Watson, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Robert Watson, )
Appellant, )
)
v. ) Appeal No. 01983243
) Agency No. 2-93-2282R
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On March 25, 1998, appellant filed a petition for enforcement of
the agency's June 26, 1996 final decision (FAD) pertaining to his
complaint of unlawful employment discrimination in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq.<1> In his complaint, appellant alleged that he was
subjected to discrimination on the basis of age (DOB 7/23/32) when:
Appellant was not selected for either of two General Engineer, GM-801-15
positions available under Vacancy Announcement Nos. ADD-91-5556 and
ADD-92-2285, and
Appellant was not rated highly qualified for the position of General
Engineer, GM-801-15, under Vacancy Announcement No. ADD-2-92-1630
On June 26, 1996, the agency issued a FAD finding discrimination, and
awarded appellant, as remedial relief, placement in the position of
General Engineer, GM-801-15, or a substantially equivalent position,
attorney's fees, backpay, seniority and any other benefits to which
he would have been entitled had he received the disputed position.
Despite problems encountered in finding a position which appellant
deemed appropriate under the FAD, on October 15, 1996, he was placed in
a supervisory GS-801-15 manager position. Appellant performed in that
position until December 21, 1997, when his supervisory responsibilities
were removed pursuant to an agency reorganization and he was placed
under the supervision of another management official.
On January 5, 1998, appellant sent a memorandum to the agency's EEO
Director containing his allegations that the agency's actions were in
violation of the remedial relief mandated by the FAD. On March 17,
1998, the agency sent appellant a letter responding to his allegations.
Therein, the agency asserted that it provided him all of the remedial
relief required by the FAD, and indicated that if appellant felt that
the December 21, 1997 reorganization was retaliatory, he needed to
raise the matter with an agency EEO Counselor and pursue the complaint
in accordance with 29 C.F.R. �1614.105.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any final decision
that has not been the subject of an appeal or civil action shall be
binding on the agency. If the complainant believes that the agency has
failed to comply with the terms of a final decision, then the complainant
shall notify the EEO Director of the alleged noncompliance within 30
days of when the complainant knew or should have known of the alleged
noncompliance. 29 C.F.R. �1614.504(a).
The Commission has held that where an individual bargains for a position
without any specific terms as to the length of service, it would be
improper to interpret the reasonable intentions of the parties to include
employment in that exact position ad infinitum. Papac v. Department
of Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991); see
also Parker v. Department of Defense, EEOC Request No. 05910576 (August
30, 1991). In addition, the Commission has held that there is no breach
of a settlement agreement "where an individual has been assigned to a
position pursuant to a settlement agreement, has held the position for a
period of time, and then is excised out of the position because of agency
downsizing that was not anticipated at the time of the agreement." Gish
v. Department of the Army, EEOC Appeal No. 01950923 (August 14, 1995).
We find that the instant case is sufficiently analogous. On appeal,
appellant acknowledges that as of October 15, 1996, upon his placement
in a supervisory GS-801-15 manager position, the requirements of the
FAD were met by the agency. Appellant's subsequent "reassignment" did
not occur until more than a year later. Because the record discloses
that appellant was provided all of the remedial relief to which he was
entitled under the FAD, we find that enforcement is not warranted.
Appellant is advised that if he believes that his reassignment
was discriminatory, as advised by the agency in its March 17, 1998
correspondence, he must initiate contact with an agency EEO Counselor
and pursue his complaint in accordance with 29 C.F.R. �1614.105.
Accordingly, the agency's decision finding that it was in compliance
with the June 26, 1996 FAD is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 2, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Appellant characterized the instant
appeal as an allegation of breach of a settlement agreement.
We note, however, that the record contains no evidence that a
settlement was reached in this complaint; rather, the agency issued
a decision on the merits of appellant's complaint. Accordingly,
we will treat appellant's appeal as a petition for enforcement
pursuant to 29 C.F.R. �1614.503(a).