0120121582
12-18-2012
Lemon L. Gully, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lemon L. Gully,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121582
Agency No. 200L-0598-2005102286
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the Agency dated January 25, 2012, finding that it was in compliance with the terms of a September 18, 2006 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On September 18, 2006, Complainant and the Agency entered into a settlement agreement to resolve seven EEO complaints that had been pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
2.1. Consideration: In consideration for the Complainant's undertakings as memorialized in paragraph 1, the Agency will remit $6,000.00 to the Complainant.
2.2 Authorized Absence: The Agency agrees to grant the Complainant a total of 80 hours of authorized absence for the period of September 18 through 30, 2006.
2.3. Sick Leave: The Agency agrees to convert 250.25 hours of approved sick leave which Complainant took between April 1, 2005 and September 14, 2006 to authorized absence, restoring said 250.25 hours to the Complainant's sick leave account.
2.4 Official Personnel Folder: The agency agrees to remove all disciplinary documents from this folder upon his retirement.
2.5 The Agency agrees to provide Complainant with all the official normal considerations customarily provided upon a police officer's retirement from a Department of Veterans Affairs police department.
On June 12, 2007, Complainant alleged breach of the instant settlement agreement, and asserted that the settlement agreement should be voided. Specifically, Complainant alleged that although he was represented by an attorney, he nevertheless signed the subject agreement under duress and agreed to an unfavorable agreement. On July 20, 2007, the Agency issued a decision finding that Complainant did not sign the agreement under duress and that it was a valid and enforceable agreement.
On appeal, the Commission affirmed the Agency's breach decision and found that Complainant was not coerced when he signed the agreement. Gully v. Department of Veterans Affairs, EEOC Appeal No. 0120073790 (January 23, 2009), request for reconsideration denied, EEOC Request No. 0520120071 (December 22, 2011).1
The record further reflects that on January 5, 2012, the Agency indicated that it had received a referral concerning a breach allegation, dated February 24, 2009. In an email dated January 9, 2012, an Agency noted the progression of what the Agency construed as a new breach claim. Specifically, the Agency official stated that "[A]pparently, [Complainant] alleged this in 2009, and sent it directly to EEOC." The Agency official stated that its Office of Resolution Management had "just received this allegation on January 5, 2012."
In this new breach allegation, Complainant alleged that he signed the agreement under duress and that he was not capable of representing himself and negotiating a fair settlement agreement. Complainant requested that the agreement be voided. Complainant also alleged that the Agency breached provision 2.3. Specifically, Complainant acknowledged that the Agency restored 250.25 hours of sick leave on July 3, 2007. However, Complainant asserts that the sick leave should have been restored before his retirement. Complainant requested that his underlying complaints be reinstated from the point processing ceased.
On January 25, 2012, the Agency issued a letter of determination (the subject of the instant appeal). The Agency first noted that in June 2007, Complainant had first contacted the Agency, asserting that the subject settlement agreement should be declared void. The Agency noted further that on July 20, 2007, the Agency issued a decision finding that Complainant did not sign the agreement under duress. The Agency also noted that Complainant filed an appeal from the July 20, 2007 Agency determination, and that the Commission affirmed the Agency's decision and that a request for reconsideration had been denied, as outlined above.
The Agency next notes that on January 5, 2012, it had received a referral regarding a breach claim, dated February 24, 2009, from its Office of General Counsel. The Agency found that, in that February 2009 breach claim, Complainant alleged again that the settlement agreement should be declared void, and that the sick leave restoration identified in provision 2.3 should have been restored before his retirement, as discussed above.
The Agency dismissed Complainant's breach claim as untimely filed. The Agency noted that on February 24, 2009, Complainant notified the Commission that the Agency was in breach of provision 2.3., and that on June 12, 2007, Complainant notified the Agency that it was in breach of provision 2.3. The Agency further determined that if Complainant felt that the Agency was not in compliance, he should have pursued his breach claim in 2007 instead of on February 24, 2009. Therefore, the Agency dismissed Complainant's breach claim because he failed to pursue his breach allegation with due diligence.
The Agency further found that assuming Complainant's breach claim was timely filed, Agency management was in compliance with provisions 2.1. - 2.4. of the settlement agreement. The Agency found that in regard to provision 2.1., the Chief Accountant submitted a computer printout screen indicating that on December 21, 2007, Complainant was paid in the amount of $6,000.
Regarding provisions 2.2. and 2.3., the Agency stated that an EEO Manager submitted copies of Complainant's attendance records which showed that the Medical Center granted Complainant 80 hours of authorized absence for the September 18, 2006 - September 30, 2006 time period, and converted 250.25 hours of sick leave to approved absence from April 1, 2005 to September 14, 2006.
With respect to Complainant's allegation that the Medical Center should have restored 250.25 hours of sick leave before July 3, 2007, the Agency stated that provision 2.3. does not provide a specific time period for Complainant's sick leave to be restored.
Regarding provision 2.4., the Agency found that on July 3, 2007, the Human Resource Specialist signed a statement indicating that he reviewed Complainant's Official Personnel Folder and confirmed that all disciplinary documents have been removed from the folder.
Regarding provision 2.5., the Agency determined that this provision is invalid because Agency management agreed to provide Complainant with nothing more than he was already entitled to as an agency employee. Provision 2.5. provides that the Agency would provide Complainant with "all the official normal considerations customarily provided upon a police officer's retirement from the VA police department." The Agency determined that there was no benefit provided by the Agency management because they only agreed to follow existing policies or regulations. The Agency determined that the agreement would be enforced without provision 2.5.
Complainant, on appeal, restated his argument that he signed the September 18, 2006 agreement under duress and agreed to an unfavorable agreement. Complainant also argued that his former attorney was unfamiliar with his case.
The instant appeal followed.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission must first note that there seems to be some confusion regarding the processing of the instant breach claim. A fair reading of the record reflects that the Agency has, in essence, construed a new breach claim from a document prepared by Complainant, dated February 24, 2009, which was actually a request for reconsideration of the Commission decision dated January 23, 2009, and referenced above. Specifically, the February 24, 2009 document captions the appeal number for the January 23, 2009 Commission decision, and expressly requested that the Commission to reconsider the Agency's July 20, 2007 final decision and "reverse its decision and find the whole settlement null and void and order the agency to reinstate all complaints and initiate processing all complaints where processing ceased." (emphasis added).
We will not revisit the argument raised by Complainant in the February 24, 2009 document regarding purported duress in the execution of the subject agreement, as that matter has been fully considered by the Commission. However, Complainant also raised the issue of breach of provision 2.3. Therefore, to the extent that the February 24, 2009 document can be construed as a new breach claim, we will now address it herein.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides 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. All time limits in 29 C.F.R. Part 1614 are subject to waiver, estoppels and equitable tolling. 29 C.F.R. � 1614.604(c).
In claiming breach of provision 2.3., Complainant raises the following argument. The Agency purportedly failed to timely change "the sick leave to authorized absence and not restoring the sick leave to my sick leave account, it has caused me harm because I have been retired since September 30, 2006, and the sick leave should have been added to my account at that time and computed with my annuity retirement pay which would have affected the amount of my annuity retirement pay under the Civil Service Retirement System." Specifically, Complainant alleged that his time cards for the January 10, 2006, March 7, 2006, May 2 and 15, 2006 time period were not changed "to authorize[d] absence until July 3, 2007, after I had filed a claim with the agency."
We find that Complainant's breach claim was untimely raised. The settlement agreement informed Complainant that if he believed the Agency had failed to comply with the terms of the agreement, he was required to notify the EEO Compliance and Appeals Coordinator in his area of the alleged noncompliance within 30 calendar days. We note that Complainant sent the February 24, 2009 letter to the Commission, not the EEO Compliance and Appeals Coordinator, alleging breach of provision 2.3. Specifically, Complainant alleged that his sick leave should have been restored before his retirement in September 2006. Provision 2.3. provided that the Agency would convert 250.25 hours of approved sick leave which Complainant took between April 1, 2005 and September 14, 2006 to authorized absence, restoring 250.25 hours of approved sick leave to Complainant's sick leave account. The record reflects that although Complainant alleged that the Agency delayed restoring sick leave to his sick leave account, the Agency complied with provision 2.3. by restoring 250.25 hours to Complainant's sick leave account. However, Complainant did not raise the breach claim until February 24, 2009, which is approximately one year and six months after the alleged breach.
Complainant waited at best almost one year and six months from the date he knew of the Agency's alleged delay in restoring 250.25 hours of approved sick leave to his sick leave account to notify the EEO office of the alleged breach of provision 2.3. of the settlement agreement. Thus, we find that Complainant did not diligently pursue his claim. Complainant has failed to provide sufficient justification for extending or tolling the time limit.
Moreover, assuming arguendo that the breach claim was timely raised, we nevertheless determine that there is sufficient evidence of record supporting an Agency determination that it was in compliance with this provision, as well as with the remainder of the subject agreement.
Accordingly, the Agency's finding that Complainant's breach claim regarding provision 2.3 was untimely raised is AFFIRMED.
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), at 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 (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 (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 18, 2012
__________________
Date
1 The Commission also noted that one of the seven complaints underlying the settlement agreement included reprisal for a prior age-based claim (Agency No. 200L-0598-2006102632), while the remaining six complaints raised no age-related issues. As such, the Commission found that the waiver language in the settlement agreement was not sufficient under the Older Workers Benefit Protection Act (OWBPA) for Agency No. 200L-0598-2006102632 and remanded this underlying complaint to the Agency for further processing.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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