0520070176
01-11-2007
Stacey V. Nelson, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Stacey V. Nelson,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Request No. 0520070176
Appeal No. 0120061718
Agency No. 03063285004
DENIAL
Complainant timely requested reconsideration of the decision in Stacey
V. Nelson v. Department of the Navy, EEOC Appeal No. 0120061718 (October
23, 2006). 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).
The record indicates that on January 15, 2006, complainant filed an appeal
with the Commission concerning the determination of the agency that it was
not in breach of the Settlement Agreement (SA) dated October 19, 2004.
Complainant filed a formal complaint, claiming discrimination based on
disability and in reprisal for prior EEO activity. Prior to the hearing
on complainant's formal complaint, the parties, with the assistance
of the Administrative Judge, entered into a settlement agreement (SA),
memorialized in a document signed and dated October 19, 2004. On (a)
November 11, (b) December 11, and (c) December 20, 2005, complainant
notified the agency that it had breached the SA. The agency responded
to each of complainant's allegations of breach. In addition, during the
pendency of this appeal, complainant alleged another breach of the SA on
(d) May 29, 2006, in a pleading filed with the Commission; the agency
filed a response on June 28, 2006. Although complainant's allegation of
breach in (d) did not comply with our regulation found at 29 C.F.R. �
1614.504, because we considered other allegations of breach, in the
interests of judicial economy, the Commission addressed this claim as
well, to the extent that it alleged a breach of the SA.
At the time of the events herein, complainant worked for the agency's
investigation service as an Investigator, located in Yokosuka, Japan. The
terms of the SA provided, inter alia, that in exchange for withdrawal
of his complaints, including all supplements and amendments, that
complainant be promoted to GS-12/7, that he receive an amount of money,
that he attend one training course, that certain medical documents in
the possession of the agency be destroyed, that the agency not retaliate
and not reclassify his position, and that the agency remove comments in
his performance appraisal (PARS) for the period ending May 31, 2003.
After consideration of the SA and complainant's allegations, the
Commission found that the agency did not breach Paragraphs 9, 11, 12, 14
and 16 of the SA. In his request for reconsideration, complainant alleged
that the Commission's decision was based on erroneous interpretations of
material facts, pertinent law and was a misapplication of established
EEOC policies. Complainant specifically alleged that: (1) he did not
receive training as stipulated; (2) the agency's retention of his PARS,
for the period ending May 31, 2003, was not an insignificant violation
of the SA; and (3) the Commission erred in finding that the agency did
not destroy all copies of his medical records.
However, as found in our prior decision, we find that the agency did not
breach the SA. Specifically, responding to complainant's allegations, we
note that our prior decision found that the SA is plain and unambiguous on
its face and the agency did not breach the SA. Specifically, with regard
to Paragraph 9 of the SA (regarding training courses), we previously found
that the SA provided that selection and approval for the training course
was given to complainant's supervisor (S1). As to his allegation of
breach regarding Paragraph 14 (regarding destruction of medical documents
from complainant's medical providers), we found in our prior decision
that the agency presented probative evidence that the "medical documents"
referred to in Paragraph 14 of the SA were destroyed in December 2004,
and we find that the agency's failure to confirm the destruction was
de minimis and likely of little importance to complainant, since he did
not inquire about the documents until December 2005. Similarly, we again
find that complainant's allegation of breach of Paragraph 11 (regarding
removal of all comments from his PARS for the rating cycle ending May
31, 2003), as he found a copy of his previous PARS in his supervisor's
office, to be insignificant and inconsequential. We note that the
agency was obligated to remove the previous PARS from "personnel files,"
and S1's office files were not official "personnel files." Further,
as we previously noted, S1 was unaware that the prior PARS was located
in his office, until brought to his attention by complainant.
As such, after reconsidering 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 decision in EEOC Appeal No. 0120061718 remains the
Commission's final 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 (P0900)
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 (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
___1-11-07_______________
Date
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0520070176
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070176