01995109
08-09-2000
Ronald T. Nave, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Ronald T. Nave v. Defense Logistics Agency
01995109
August 9, 2000
.
Ronald T. Nave,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01995109
Agency No. XQ-99-001
DECISION
The record indicates that on February 28, 1990, complainant previously
filed a formal complaint, Agency No. XM-90-006, concerning his
nonselection to a GS/M-13 level position in October 1989. After the
completion of investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On March 1, 1993, the AJ, in EEOC Hearing
No. 280-91-4076X, issued her recommended decision finding discrimination
and awarded complainant retroactively to the position of Supervisory
Branch Chief, GS-13, with back pay and all other employment benefits.
On May 10, 1993, the agency issued its decision adopting the AJ's decision
as its decision with modification that complainant would be promoted
retroactively to the position of Supervisory Industrial Specialist,
GM-1150-13, or a fully equivalent position.
Thereafter, on January 13, 1998, complainant, GS-12, contacted an EEO
Counselor alleging that the agency never fully implemented the AJ's
decision nor its previous decision. Specifically, complainant alleged
that he received back pay but did not receive a permanent GS-13 position.
Complainant indicated that he was held in a temporary GS-13 position for
three years. Thereafter, complainant filed the instant formal complaint
dated October 8, 1998.
On May 10, 1999, the agency issued a decision dismissing the instant
complaint for stating the same matter that had been decided in its May
10, 1993 decision. Complainant appeals from this decision.
Initially, it is noted that the agency improperly processed complainant's
claim for the alleged noncompliance as a separate complaint, instead of
processing it as its failure to comply with its May 10, 1993 decision.
Thus, this alleged noncompliance matter will be reviewed in this decision
accordingly.
Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.504) provides that if the complainant
believes that the agency failed to comply with its final action, the
complainant should notify the Director of Equal Employment Opportunity,
in writing, of the alleged noncompliance with the settlement agreement,
within thirty (30) days of when the complainant knew or should have
known of the alleged noncompliance.<1>
The record indicates that in its May 10, 1993 decision, the agency stated
that complainant would be promoted to a GM-13 position retroactively,
including back pay and other employment benefits. Complainant alleged
that the agency failed to implement the decision since he was not promoted
to a GM/S-13 position. In his complaint, complainant indicated that he
had not been assigned to a GS-13 position for three years. Complainant,
however, did not notify the agency of its alleged noncompliance until
January 1998, which was beyond the 30-day time limit. On appeal,
complainant does not provide any justification with regard to notifying
the agency of its alleged noncompliance in an untimely manner. Thus,
the Commission finds that complainant's claim of the alleged noncompliance
is untimely and the agency's dismissal of the matter is proper.
Accordingly, the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 9, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.