0120160549
02-17-2016
Chi E.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chi E.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160549
Agency No. ARREDSTON13JUL02070
DECISION
Complainant filed a timely appeal with this Commission from the Agency's October 6, 2015 Letter of Determination, finding that it was in compliance with the terms of the 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.
BACKGROUND
On February 24, 2014, Complainant and the Agency entered into a settlement agreement ("the Agreement"), to resolve the above-captioned EEO Complaint.
In March 2014, per the Agreement, Complainant was reassigned to the position of Electrical Engineer (GS-12) in the Agency's Oil Analysis Program ("AOAP") Management Office, Global Support Center. Under the Agreement, Complainant's grade level and step increases, which had been based on a non-competitive career ladder program, would continue to be based on that program until he reached GS-13. The corresponding performance ratings would reflect that Complainant began his AOAP position in April of 2013, with his 2014 annual rating of record based on the standards of the AOAP position.
Concerning the performance rating, Paragraph 4(b) of the Agreement provides:
That [the Agency] will reinstate the performance rating for the period April 2012 - April 2013 and will cancel the 120 day rating period previously directed by the step three grievance decision, dated September 30, 2013. The April 2013 rating stands and serves as the annual rating of record for 2013. Complainant will be placed under standards upon reporting to AOAP and will receive an annual rating based on those standards immediately preceding his promotion to GS-13. This will serve as his 2014 annual rating of record. When he reaches his target grade, his rating cycle will be aligned with all other GS-13s.
By letter to the Agency dated August 28, 2015, Complainant alleged that the Agency was in breach of Paragraph 4(b) and requested that the Agency specifically implement its terms. Complainant's allegation arose when Agency management officials refused to provide him with any 2014 rating until July 2015, even though Complainant's senior rater signed his performance appraisal in December 2014 and Complainant previously submitted multiple requests to his senior rater and three other Agency officials to access his 2014 annual rating. Additionally, when Complainant did receive his 2014 rating, it was categorized as a "special" rating instead of an "annual rating of record."
On October 6, 2015, the Agency issued a final decision acknowledging its initial failure to fully comply with Paragraph 4(b) of the Agreement, but ultimately finding no breach of contract occurred, pursuant to 29 C.F.R. � 1614.504(b).
ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.504(b) provides that after notification by a complainant of alleged noncompliance with a settlement agreement, that agency should resolve the matter and respond to the complainant in writing. If the agency fails to respond or the complainant is dissatisfied with the agency's attempt to resolve the matter, the complainant may file an appeal with the Commission for a determination as to whether the agency complied with the terms of the settlement agreement, thirty-five (35) days after he or she has served the agency with the allegations of noncompliance. The Commission has interpreted this provision as allowing the agency the opportunity to cure any breach that may have occurred. See Beers v. Dep't of the Treasury, EEOC Appeal No. 0120004975 (Oct. 17, 2001) (citing Covington v. United States Postal Serv., EEOC Appeal No. 0119913211 (Sept. 30, 1991)).
The record supports the Agency's finding that it timely cured the breach in accordance with the regulation. Emails dated September 15, 2015 (about twelve (12) days after the Agency's EEO office received Complainant's notification of breach) an official "Annual Appraisal" with a performance rating of "5" or "Exceptional" was added to Complainant's Official Personnel File ("OPF"). Complainant does not dispute that he now has access to his 2014 performance rating and, per the Agreement, it is an "Annual" rather than "Special" appraisal.
The Agency explained that it initially failed to comply with paragraph 4(b) due to "personnel turnover and a failure of communication;" noting that it was bound by Paragraph 4(d) to "only share the terms of the Agreement with those who have an official need to know." The personnel specialist and management official that helped to prepare the Agreement and presumably would have executed Paragraph 4(b), retired from the Agency before Complainant's revised 2014 Performance Appraisal was submitted to his OPF. The Agency also asserts that a rating was prepared and submitted, but the personnel specialists who received it, unaware of the Agency's obligation under Paragraph 4(b), refused to file it in Complainant's OPM because it was past the deadline specified in the applicable collective bargaining agreement. The only other management official that helped prepare the Agreement, Agency Counsel, was unaware of this noncompliance until he received Complainant's notice.
On appeal, Complainant disputes this explanation, claiming that a number of others were aware of the Agreement. For instance, he reasons that his supervisors knew of the Agreement because his transfer was implemented as a provision of Paragraph 4(a). Complainant's second line supervisor (also identified as his senior rater) in particular should have known because he was responsible for preparing the rating necessary to implement Paragraph 4(b). Other individuals Complainant alleges knew of the Agreement include support personnel who worked for the two retired management officials before they left the Agency. Finally, Complainant alleges the delay in compliance was intentional and caused him harm by preventing him from meeting eligibility requirements to participate leadership training and further his career.
Given the confidentiality provision of the Agreement, the evidence in the record is insufficient to support Complainant's claims. Additionally, Complainant stated he is pursuing a claim of reprisal to address the alleged harm caused by the delay in compliance. Finally, the requested remedy from Complainant was specific performance of Paragraph 4(b). At present, the Agency is fully compliant.
CONCLUSION
Accordingly, the Agency's finding that it was not in breach of the Agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
February 17, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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