01990408
12-28-2000
Roosevelt D. Franklin, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Roosevelt D. Franklin v. Department of the Army
01990408
December 28, 2000
.
Roosevelt D. Franklin,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01990408
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 15, 1998, finding that it was in
compliance with the terms of the February 25, 1992 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 complainant's
�most recent grade increase up to GS -10" would be backdated for a period
of two years from the effective date of the agreement and be applied
to civil service retirement benefits. By letters to the agency dated
July 21 and 22, 1998, complainant alleged that the agency was in breach
of the settlement agreement, and requested that the agency specifically
implement its terms. Specifically, complainant alleged that the agency
failed to promote him to GS-10, Step 9, as was agreed upon, and to
correctly backdate that agreed upon grade and step.
In its September 15, 1998 decision, the agency concluded that it had
fully complied with the settlement agreement and that complainant's
claims of breach were untimely. In response to complainant's appeal,
the agency also notes that complainant retired on March 31, 1992, at
the GS-10, Step 8 level, and that the backdated promotion was used to
calculate complainant's retirement benefits.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides, in pertinent part,
that if a complainant believes that the agency has failed to comply
with the terms of a settlement agreement or decision, complainant shall
notify the EEO director, in writing, of the alleged noncompliance within
30 days of when the complainant knew or should have known of the alleged
noncompliance.
In the instant case, without reaching the merits of complainant's
breach claim, we find that complainant failed to timely notify the
agency of their alleged noncompliance with the settlement agreement.
The record indicates that complainant's claim of noncompliance was made
over six years from both the February 25, 1992 date of the settlement
agreement and his March 31, 1992 retirement. Complainant, however,
has offered no explanation for his delay in notifying the agency of
their alleged noncompliance. Therefore, as complainant did not notify
the agency within 30 days of when he knew or should have known of the
alleged noncompliance with the terms of a settlement agreement, his
claim of breach was untimely.
Accordingly, the agency's determination that complainant's claim of
noncompliance was untimely filed is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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
December 28, 2000
__________________
Date