01A05359_r
08-13-2002
Simp McCorvey, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Simp McCorvey v. Department of the Air Force
01A05359
August 13, 2002
.
Simp McCorvey,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A05359
Agency No. AL9000000727
DECISION
Complainant filed an appeal with this Commission concerning agency
compliance with the terms of the June 29, 1999 settlement agreement into
which the parties entered. The settlement agreement generally provided,
in pertinent part, that in exchange for withdrawing his complaints,
the agency would: 1) cancel complainant's fourteen-day suspension; 2)
permanently detail complainant to the Vertical Shop; 3) direct certain
personnel to avoid contact with complainant; 4) grant enumerated
attorney's fees to complainant; 5) restore complainant's sick leave
from August 10, 1998 through November 21, 1998; and 6) grant a lump sum
payment to complainant for medical fees.
By letter to the agency dated August 5, 1999, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that he had received a Notice of Proposed Reprimand
dated July 23, 1999, for use of offensive language during a June 3,
1999 incident. After requesting further information and meeting with
complainant, the agency issued a September 21, 1999 decision regarding the
breach claim. In its decision, the agency concluded that complainant's
breach claim was an allegation of a subsequent act of discrimination and
must be processed as a separate complaint.<1> The agency's decision
noted that complainant had already filed a complaint concerning the
Notice of Proposed Reprimand that was being processed by the agency.
In an undated later received by the Commission on July 18, 2000,
complainant filed an identical claim of breach to complainant's August 5,
1999 letter to the agency, which was recognized as the instant appeal.
In its response to the appeal, the agency asserts that in a prehearing
conference on July 13, 2000 (EEOC Hearing No. 350-A0-8113X), complainant
claimed that he never received the agency's September 21, 1999 decision
and attempted to raise the claim of breach before the Administrative Judge
assigned to hear the complaint of discrimination filed on the same issue.
EEOC regulation 29 C.F.R. � 1614.504 provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, he may request that the terms of the agreement
be specifically implemented, or, alternatively, that the complaint be
reinstated for further processing. However, EEOC regulations stipulate
that any allegations that subsequent acts of discrimination violate
a settlement agreement are to be processed as separate complaints. 29
C.F.R.� 1614.504(c).
In the instant case, complainant has failed to show, or even allege,
breach of a specific term of the settlement agreement. Although
complainant's specific breach claim concerns a July 23, 1999 Notice of
Proposed Reprimand, nothing in the June 29, 1999 settlement agreement
precludes future disciplinary action against complainant by the agency.
Moreover, complainant's breach claim concerns a new act of discrimination
occurring subsequent to the settlement agreement. Complainant's claim
must therefore be processed as a separate claim of discrimination and
not as a breach of settlement. A review of the record indicates that,
in fact, shortly after his breach claim was filed complainant filed
a separate complaint of discrimination based on the same incident,
and that the matter has been adjudicated.
Accordingly, as complainant has failed to allege any matter appropriately
addressed as a breach of settlement, the agency's decision finding no
breach of the settlement agreement is AFFIRMED.
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 (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
August 13, 2002
__________________
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
______________________________
1We note that the agency's decision also addressed complainant's claim,
apparently raised during the meeting with complainant, that his sick
leave had not been restored (paragraph 2(e)). Complainant does not
raise this issue on appeal.