0120181191
05-03-2018
Jimmy C,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jimmy C,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Appeal No. 0120181191
Agency No. 15-56-53 and 16-56-122
DISMISSAL OF APPEAL
By Notice of Appeal postmarked February 22, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the October 18, 2017 final Agency decision (FAD) concerning his allegation of breach of a settlement agreement entered into by the parties on February 21, 2017.
A copy of the FAD provided by Complainant's attorney (Attorney) indicated that the FAD was received by the Attorney on October 23, 2017. A review of the FAD reveals that the Agency properly advised Complainant that he had thirty (30) calendar days after receipt of its final decision to file his appeal with the Commission.
Instead of filing an appeal with the Commission, following receipt of the FAD, the Attorney filed an appeal with the Merit Systems Protection Board (MSPB) on November 17, 2017. The MSPB appeal indicated that Complainant was removed from the Agency in violation of the settlement agreement entered into by the parties. The Attorney noted that Complainant has alleged breach of the settlement agreement when Complainant was not provided with an opportunity to challenge the justification for the removal action.
On January 12, 2018, the MSPB Administrative Judge (AJ) issued an Initial Decision dismissing the matter for lack of jurisdiction. The AJ noted that the parties entered in to a settlement agreement which provided for a procedure for Complainant to bring a claim of breach of the settlement agreement. Specifically, the AJ held that the provisions of the regulations provide for Complainant to raise a claim of breach of the agreement to the Agency's EEO Director. Further, the AJ stated that Complainant would have appeal rights to the Equal Employment Opportunity Commission. The AJ indicated that Complainant had raised his claim of breach with the Agency and been provided with a response from the Agency's EEO Director dated October 18, 2017. In response, the Attorney filed the instant MSPB appeal. The Attorney, in response to the Agency's motion to dismiss, agreed that Complainant had waived his right to appeal his removal to the MSPB but claimed that the Agency's breach of the settlement agreement voided the waiver. As such, the MSPB AJ determined that the Attorney's argument for MSPB jurisdiction was based on the enforceability of the waiver agreed upon in the settlement agreement.
However, the MSPB AJ found that it is the EEOC, not the MSPB, who has the authority to make a determination regarding the settlement agreement at issue because the parties agreed to the claim of breach process within the terms of the agreement. The MSPB AJ noted that the Attorney was provided with appeal rights to the EEOC, yet the Attorney filed an appeal with the MSBP. The MSPB AJ found that the appeal to the MSPB was inconsistent with the remedies provided within the settlement agreement and held that the agreement is controlling in the instant matter. Therefore, the MSPB AJ dismissed Complainant's appeal for lack of jurisdiction by the MSBP. Further, the MSPB AJ found that the jurisdiction of a claim of breach of the settlement agreement rests with the EEOC. The MSPB AJ decision became final on February 16, 2018.
On February 22, 2018, the Attorney filed Complainant's appeal to the EEOC. On appeal, the Attorney alleged that the Agency breached the settlement agreement. In response to the appeal, the Agency argued that Complainant's appeal is untimely. As such, the Agency asked that the Commission dismiss the instant appeal. The Attorney responded arguing that Complainant pursued the matter with the MSPB to address the Agency's removal action.
The Commission has previously held that an appeal is untimely where it is mailed to the wrong office, even if it would have been timely if mailed directly to the Commission. See Henry v. Dep't of Veterans Affairs, EEOC Request No. 05901116 (Nov. 30, 1990). A review of the Agency's FAD reveals that the Agency properly advised Complainant that he had thirty (30) calendar days after receipt of the decision to file his appeal with the Commission, not the MPSB. The Agency's decision informed Complainant that he had to file his appeal with the Office of Federal Operations (OFO) and provided Complainant with OFO's Washington, D.C. mailing address. Rather than filing an appeal with the EEOC, the Attorney filed Complainant's appeal with the MSBP. Although the Commission's regulations governing the computation of the time limits allow for waiver and equitable tolling, Complainant has not offered adequate justification for an extension of the applicable time limit for filing his appeal. A review of the MSPB AJ's decision indicated that the parties were clearly made aware that the settlement agreement provided the parties with procedures to allege claims of breach. Rather than following the procedures provided within the settlement agreement and regulations found in 29 C.F.R. � 1614.504, the Attorney and Complainant filed an appeal with the MSPB. Upon review of the record, we find that the Attorney's MSPB appeal did not toll Complainant's appeal rights to the EEOC.
Therefore, in order to be considered timely, Complainant had to file his appeal no later than November 22, 2017. Complainant has not offered adequate justification for an extension of the applicable time limit for filing his appeal.
CONCLUSION
Accordingly, Complainant's February 22, 2018 appeal is hereby dismissed. See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 3, 2018
__________________
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
0120181191
4
0120181191