0120121166
12-26-2012
Corey Ducre, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Corey Ducre,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121166
Agency No. 10-40080-03249
DECISION
On December 15, 2011, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after he notified the Agency that it breached a settlement agreement the parties entered and the Agency failed to make a final Agency determination on his breach claim. The appeal is accepted. See 29 C.F.R. � 1614.504(b).
BACKGROUND
At the time he entered into a settlement agreement with the Agency, Complainant worked as an Electronic Technician at the Agency's Naval Facilities Engineering Command Washington, Goddard Power House in Indian Head, Maryland.
On March 30, 2011, Complainant and the Agency entered into a settlement agreement to resolve an equal employment opportunity (EEO) complaint Complainant filed. While the settlement agreement in the record is missing the signature page, and for this reason is unconfirmed, we recount the relevant provisions therein so that we may give some direction to the parties on remand. The unconfirmed settlement agreement provided, in pertinent part, that:
5. The Employee, in consideration for the mutual promises contained herein, agrees to:
a. submit correct timecards for 14, 18, 21, and 24, March 2011.
b. work with the contractor discussed in paragraph 7 below during the review of the Continuous Emissions Monitoring (CEM) system and during the development of the PMs [preventative maintenance documents] and the CEM system.
c. attend the training discussed in paragraph 7(d)(iv) below.
d. that this Agreement immediately withdraws with prejudice any and all pending EEO complaints.
7. The Agency, in consideration for the mutual promises contained herein, will:
a. upon receipt of the Employee's timecards mentioned in paragraph 5(a) above, correct the Employee's leave use for the listed dates.
b. put in a request for a job audit on the Employee's position (Electronics Technician, GS-0856-11).
c. have monthly safety talks with the Instruments Shop of the Goddard Power Plant in Indian Head, MD.
d. bring in a contractor to do the following:
i. review the CEM system,
ii. correct any deficiencies in the CEM system,
iii. establish a preventative maintenance program for the CEM system, and
iv. perform in-house training on the CEM system for the GS-0856-11's.
11. The employee agrees that the terms of this Agreement will remain confidential and may only disclose the terms of the Agreement to his immediate family members and to his personal attorneys, accountants, and tax preparers.1
11. The Employee understands and agrees that any claimed violation, breach or failure to perform any of the commitments described in this settlement agreement by the Agency shall be raised in writing with the EEO Director of [the] Agency within thirty (30) calendar days of the date the Employee knew or should have known of the alleged noncompliance as described in 29 C.F.R. � 1614.504.
12. If Agency has not responded to the Employee in writing, or if the Employee is not satisfied with the attempts to resolve the matter, the Employee may appeal to the...[EEOC], Office of Federal Operations....
By e-mail to an Agency EEO counselor sent on May 5, 2011, Complainant alleged that the Agency breached the settlement agreement, and asked what his rights were and what the next step should be. He did not explain how he believed the settlement was breached. Complainant believes that the confidentiality clause in the settlement agreement restricts him from discussing the terms of his settlement agreement, a belief which has carried over to some degree to some or all his communications about the alleged breach(es).
The EEO counselor responded to Complainant that she would look at the settlement agreement, and if it was not complied with the next step would be to have the case investigated. She also asked Complainant to talk to management to remind them about the settlement agreement. On June 28, 2011, the EEO counselor emailed Complainant asking him what management was not doing to honor the settlement agreement and that she was told that with an exception (not identified in the record) that everything in the settlement agreement was implemented or was being implemented.
On behalf of Complainant the union filed a grievance dated October 18, 2011, about a September 30, 2011, decision to suspend him for four days. The union asked for a declaratory award finding that the Agency breached the settlement agreement. On November 29, 2011, the Agency made a decision denying the grievance at the step 1 level. According to the decision, the suspension was in part because Complainant did not follow instructions on preventative maintenance sheets and log books. It indicated Complainant argued that the Agency violated the settlement agreement by failing to execute a contract to review and update the CEM system and train on doing preventive maintenance on it, which led to his inability to complete preventative maintenance sheets for the CEM system. According to the decision, Complainant contended it was necessary for the Agency to implement the agreed upon CEM contract before he could be disciplined for not completing tasks, as ordered. The Agency denied the grievance.
On December 20, 2011, Complainant filed EEO complaint 12-40080-00384, which the Agency partially dismissed. Among the issues which the Agency defined and dismissed were whether the Agency violated the settlement agreement and discriminated against him based on race and reprisal for EEO activity when on September 30, 2011, it suspended him for four days. In his complaint Complainant alleged that the Director and his supervisor repeatedly told him after May 2011 that the Agency could not comply with the settlement agreement because it had no money to do so, but the supervisor also misinformed EEO staff that the Agency was in full compliance with the settlement agreement. In May 2012, the Agency dismissed the above two issues on the grounds that Complainant previously filed a grievance on them dated October 18, 2011, under the negotiated grievance procedure. 29 C.F.R. � 1614.107(a)(4). It also dismissed the settlement agreement claim because the matter was pending before the EEOC on appeal.2
Complainant asks that if the EEOC finds that the Agency breached his settlement agreement, that complaint 10-40080-03249 be reinstated.
ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties.
There is insufficient information in the record to make a decision on breach. As previously noted, the record copy of the settlement agreement is unconfirmed because it does not contain the signature sheet. Further, presumably because the Complainant believes he is restricted by the confidentiality clause in the settlement agreement, he has provided little information on which settlement terms are still at issue, and precisely how the Agency has not complied. On appeal, through legal counsel, Complainant does not identify which terms were breached, and writes he did not include a copy of the settlement agreement therein because of its nondisclosure provision. Likewise, the Agency has provided no information showing it has complied with the settlement agreement, nor does it make any comment on appeal.
We take this opportunity to provide the parties some guidance on remand. As an initial matter, the confidentiality clause does not apply to those in the Agency's EEO office or its designees and the EEOC who under 29 C.F.R. � 1614.504 are reviewing whether the Agency complied with the settlement agreement and the proper remedy for noncompliance. To give effect to the above regulation, Complainant is free to provide a copy of the entire settlement agreement and make arguments with supporting documentation to the above officials on questions of their jurisdiction and whether there has been compliance and the proper remedies.
On appeal Complainant argues his written notice to the EEO counselor on May 5, 2011, of his notice of breach should be construed as proper notice. Among other things, he notes the EEO counselor's advice and actions. We agree with Complainant's argument. He made a written allegation of breach to the EEO counselor on May 5, 2011, who indicated she would handle the matter. To the extent she did not do so, the counselor should have referred the matter to the EEO Director or the Director's designee.
While we are making no rulings in matters in complaint 12-40080-00384, we advise the parties of the distinction between a claim that a settlement agreement has been breached and a new claim of discrimination. EEOC Regulation 29 C.F.R. � 1614.504(c) provides that allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints under � 1614.106, rather than under � 1614.504. Based on our reading of the unconfirmed settlement agreement, Complainant's subsequent suspension was subject to processing as a new complaint, not under � 1614.504. Likewise, a claim that the Agency breached a settlement agreement does not give rise to a new claim of discrimination. Rather, it should be processed under � 1614.504.
It is unclear whether the Agency declined to process Complainant's breach of settlement agreement claim under 29 C.F.R. � 1614.504 because he filed a grievance on the same matter or his claim of breach is pending on appeal. Nevertheless, the breach claim must be processed under 29 C.F.R. � 1614.504 under the terms of the unconfirmed settlement agreement. Also, the unconfirmed settlement agreement was negotiated in the EEO process to close an EEO complaint. There is no indication that the grievance process has any jurisdiction over enforcing this EEO settlement - for example, the unconfirmed settlement agreement does not close any grievances.
The Agency shall comply with the order below.
ORDER
The Agency shall conduct a supplemental investigation on Complainant's claim that it has not complied with the parties settlement agreement of March 30, 2011.3 It shall provide Complainant and his representative with copies of all documentation and statements gathered, and give them an opportunity to reply with documentation and statements, and include this in the supplemental investigation. Thereafter, the Agency shall provide Complainant with a copy of the supplemental investigation, and issue a final Agency decision or determination under 29 C.F.R. � 1614.504, appealable to the EEOC, on Complainant's breach claim. The Agency shall complete these actions within 40 calendar days after this decision becomes final.
In accordance with the implementation order below, the Agency shall submit a report of compliance, with a copy to Complainant, to the EEOC Compliance Officer.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 26, 2012
__________________
Date
1 This term number was incorrectly numbered in the settlement agreement. It should have been numbered 10.
2 The EEOC's computerized case tracking system indicates that complaint 12-40080-00384 is pending before our hearings unit in the EEOC's Washington Field Office.
3 The Agency shall construe May 5, 2011, as the date Complainant gave notice to the Agency under the settlement agreement and 29 C.F.R. � 1614.504(a).
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0120121166
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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