0120122858
03-04-2016
Genaro D.,1 Complainant, v. Jenny R. Yang,2 Chair, Equal Employment Opportunity Commission, Agency.
Genaro D.,1
Complainant,
v.
Jenny R. Yang,2
Chair,
Equal Employment Opportunity Commission,
Agency.
Appeal No. 0120122858
Agency No. 200900050
DECISION
On June 28, 2012, Complainant filed a timely appeal with this Commission from the Agency's May 29, 2012, final determination that it was in compliance with the terms of the May 28, 2010 settlement agreement into which the parties entered. See 29 C.F.R. �� 1614.402, 1614.504(b), and 1614.405. For the following reasons, the Commission REMANDS the settlement breach claim for further processing.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant timely raised his allegation that the Agency has not complied with provisions 3 and 4 of the settlement agreement; (2) whether the Agency has complied with provision 6 of the settlement agreement; and (3) whether Complainant has raised a new claim of discrimination, challenging the merits of a Letter of Reprimand issued subsequent to the execution of the settlement agreement.
BACKGROUND
At the time of the events at issue, Complainant worked as an Investigator Support Assistant (ISA) at the Agency's Miami District Office in Florida. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an EEO Counselor to initiate the EEO complaint process.
On May 28, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
3. The Agency agrees to provide the reasonable accommodations as detailed in the Agency's letter of September 11, 2009.3
4. As additional accommodations, the Agency agrees:
a. ... To provide training/retraining for Complainant in a form and manner similar to that provided to newly hired employees in the same position as Complainant. The focus of the training should be on successfully performing the tasks associated with the functions associated with the ISA position description that applies to ISA duties in Miami. If required, Complainant will be reasonably accommodated during the provision of training. The Agency will endeavor to provide most core material for this training in written form to Complainant in an effort to reduce the need to take notes during training.
b. ... The Agency is aware that with his conditions Complainant is not going to work at the same rate, but he is still expected to perform reasonable case management. Ongoing accommodation of Complainant's disabilities shall not be construed to reflect that he should not perform acceptably in accordance with Agency performance standards.
c. ... A portion of the training/retraining for Complainant will include opportunity to "shadow" an experienced employee in the same position. This aspect of the training shall be for a period sufficient to allow Complainant to observe and ask questions about all successful completion of all job functions. Additionally, the Agency will provide appropriate individualized guidance and instruction from the supervisors.
6. Following a determination that the accommodations are effective ... the Agency agrees to provide Complainant with a reasonable period of no less than 90 days to demonstrate that he can perform the essential functions of his restructured position description with reasonable accommodation. If a [performance improvement plan (PIP)] is warranted at any point beyond the 90 days, Complainant has the same right ... to a PIP as any employee, disabled or non-disabled ...
14. If Complainant does not believe that the Agency has complied with the provisions of this agreement, Complainant shall notify the Agency's EEO Director. Such notification of noncompliance shall be in writing and shall be postmarked or delivered within 30 days of the time Complainant becomes aware, or should have been aware, of the noncompliance ...
On March 26, 2012, the Enforcement Supervisor (S1) issued Complainant a letter of reprimand (LOR) based on his failure to perform his job duties in an acceptable manner and his failure to comply with supervisory instructions. Specifically, the LOR outlined the following: (i) Complainant was assigned intake mail for processing; (ii) some of the work Complainant submitted for review was returned to him for corrections; (iii) when Complainant was repeatedly asked for the work, he either indicated that he resubmitted it for review or that another employee may have stolen it from his desk; and (iv) S1 later discovered that Complainant did not process over 30 pieces of intake mail, including mail assigned to him as early as February 2011. In addition, the LOR stated that further discipline could occur if Complainant did not correct his misconduct and lack of performance of his duties.
By letter to the EEO Director dated April 24, 2012, Complainant alleged that Agency breached provisions 3, 4, and 6 of the settlement agreement. Specifically, Complainant argued that the Agency breached provisions 3 and 4 when it did not provide him with the job coaching accommodation until August 2011. Moreover, Complainant argued that the Agency breached provision 6 when it issued him the LOR because: (a) the alleged pre-August 2011 performance issues occurred before the implementation of the job coaching accommodation; and (b) the alleged post-August 2011 performance issues should have been handled through a PIP.
In its May 29, 2012 determination, the Agency found that it was in compliance with provision 6 of the settlement agreement when it issued Complainant the LOR. Citing telephone conversations with management, the Agency found that the LOR did not implicate the settlement agreement because the LOR involved Complainant's conduct rather than performance. The Agency did not specifically address Complainant's argument regarding provisions 3 and 4.
CONTENTIONS ON APPEAL
On appeal, Complainant requested that the Commission either: (a) find that the Agency breached the settlement agreement and order the Agency to specifically implement the terms (including, but not limited to, withdrawing the LOR); or (b) vacate the Agency's determination and remand the matter for a supplemental investigation.
Regarding (a), Complainant argued that the Agency breached provisions 3 and 4 when it did not provide him with the job coaching and training/retraining accommodations until August 2011 - a delay of 14 months from the May 28, 2010 signing of the agreement. In addition, Complainant argued that the Agency breached provision 6 when it issued him the LOR. Complainant reiterated the arguments he previously raised in his April 24, 2012 letter to the EEO Director and maintained that the LOR was based on performance rather than conduct. Moreover, Complainant argued that the LOR was a "faulty, non-credible document premised on inconsistencies, contradictions, and shifting explanations," and that S1 may have issued the LOR for discriminatory reasons.
Regarding (b), Complainant argued that the Agency did not meet its burden of providing sufficient evidence to supports its determination. Specifically, Complainant asserted that the Agency did not support its determination by any affidavits or documentary evidence, but merely cited telephone conversations with management. In addition, Complainant asserted that the Agency did not provide him with an opportunity to rebut management's bare assertions.
In opposition to the appeal, the Agency requested that the Commission affirm its determination that it was in compliance with the settlement agreement. Regarding provisions 3 and 4, the Agency argued that Complainant did not timely raise his breach claim. Specifically, the Agency asserted that Complainant waited until April 24, 2012, to raise his allegation that it did not provide him with the job coaching and training/retraining accommodations until August 2011. Regarding provision 6, the Agency argued that the LOR did not implicate the settlement agreement. Specifically, the Agency asserted that the provision addressed performance whereas the LOR addressed Complainant's improper conduct: ignoring intake mail, then hiding it and lying about its whereabouts.
ANALYSIS AND FINDINGS
Provisions 3 and 4
EEOC Regulation 29 C.F.R. � 1614.504(a) provides, in pertinent part, that if the complainant believes that the agency has failed to comply with the terms of a settlement agreement, the 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. The time limits in 29 C.F.R. Part 1614 are subject to waiver, estoppel, and equitable tolling.
29 C.F.R. � 1614.604(c).
Upon review, we find that Complainant did not timely raise his allegation that the Agency has not complied with provisions 3 and 4. The settlement agreement informed Complainant that he should notify the Agency of any alleged noncompliance within 30 days. Although Complainant knew of the Agency's alleged noncompliance in August 2011 (when he received the job coaching and training/retraining accommodations), he waited an additional eight months, until April 24, 2012, to notify the Agency.
The Commission has previously found that a complainant's allegation of noncompliance with a settlement agreement was untimely raised when the complainant did not notify the agency of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. See Reddy v. U.S. Postal Serv., EEOC Appeal No. 0120130613 (Apr. 11, 2013) (allegation untimely raised where the complainant did not notify the agency until nine months after he knew or should have known of the alleged noncompliance), request for reconsideration denied, EEOC Request No. 0520130481
(Oct. 31, 2013); Higgins v. U.S. Postal Serv., EEOC Appeal No. 0120123219 (Jan. 16, 2013) (allegation untimely raised where the complainant did not notify the agency until four months after she knew or should have known of the alleged noncompliance), request for reconsideration denied, EEOC Request No. 0520130278 (Jan. 8, 2014); Massoud v. Dep't of Veterans Affairs, EEOC Appeal No. 0120111821 (Feb. 21, 2013) (allegation untimely raised where the complainant did not notify the agency until seven months after he knew or should have known of the alleged noncompliance).
Accordingly, the Commission finds that Complainant did not timely raise his allegation that the Agency has not complied with provisions 3 and 4.
Provision 6
Upon review, we find that the record contains insufficient evidence to determine if the agency has complied with provision 6. While the agency asserts that the LOR is based on Complainant's alleged misconduct in either hiding or not being forthright about missing mail, the LOR itself primarily addresses performance problems that Complainant was having in processing the mail. For example, the LOR states that on February 22 and March 30, 2011, charges were assigned to complainant for processing, but he allegedly did not follow up where warranted or directed. Another example was noted when Complainant was assigned a charge on May 4, 2011, which Complainant submitted for review on May 12, 2011, and which was returned for corrections on May 16, 2011. Again, the letter asserts that Complainant failed to complete the processing. These examples cited in the LOR appear to address performance problems regarding the way Complainant was fulfilling his assigned duties. In fact, the LOR goes on to state, "You may correct your conduct by performing all of your job responsibilities, including the processing of intake mail, in a thorough and timely manner, and by following the directions and instructions of your Supervisor at all times in the future."
On the other hand, the statements in the LOR with respect to the Complainant's alleged misconduct are relatively weak in comparison to the statements regarding performance. The LOR states solely that when Complainant was confronted with mail that had not been processed completely, Complainant "either indicated that you re-submitted it for review or that another employee may have 'stolen' the work from your desk" or that "someone took your mail."
In determining whether the LOR was, nonetheless, issued because of Complainant's misconduct, the agency relied on "telephone conversations" between the Office of Equal Opportunity and the "management" of Complainant's office. In those calls, the management supervisors stated that the LOR was issued because of Complainant's misconduct. But there are no affidavits or other investigative interviews from Complainant or his Supervisor that specifically address the alleged misconduct.
Based on the foregoing, we are remanding this case to the agency for further investigation as to the nature of the misconduct in which Complainant is alleged to have engaged. At a minimum, the agency shall obtain an affidavit from Complainant's Supervisor which shall describe in detail the alleged misconduct, evidence to support the charge of misconduct, and any other evidence deemed relevant to determine whether Complainant engaged in the misconduct of hiding mail or otherwise lying about the whereabouts of the mail he was responsible for processing. Complainant shall also provide an affidavit addressing the allegations of misconduct and his knowledge of any missing mail, as well as any other evidence as to what happened to the mail. Based upon the evidence provided, the agency shall issue a new final decision determining whether the LOR was appropriately issued because of Complainant's misconduct. If the LOR properly addressed Complainant's alleged misconduct, provision 6 of the settlement agreement will not have been breached.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission, with regard to the Letter of Reprimand only, REMANDS the breach claim for further processing consistent with this decision and the Order of the Commission, below.
ORDER
The Agency is ORDERED to take the following action:
Within sixty (60) calendar days of the date this decision becomes final, the Agency shall supplement the record pertaining to the charge of misconduct, as set forth in the decision above. The Agency thereafter shall issue a new final determination addressing Complainant's claim of breach regarding Provision 6 of the May 28, 2010, settlement agreement.
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 (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:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
___3/4/16_______________
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.
2 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent Agency and the adjudicatory authority. The Commission's adjudicatory function is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term "Commission" or "EEOC" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to the respondent party in this action. The Chair has recused herself from participation in this decision.
3 The Agency's September 11, 2009 letter stated, in pertinent part, that it would provide a job coach to evaluate Complainant's limitations and assist him with effective ways of performing the essential functions of his job.
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0120122858
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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0120122858