0120151941
03-02-2016
Numbers H.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Numbers H.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120151941
Agency No. 143597A02140
DECISION
Complainant filed a timely appeal with this Commission when the Agency did not issue a final decision within 35 days of the date in which Complainant alleged it was in breach of the terms of the July 9, 2014 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 July 9, 2014, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The July 9, 2014 settlement agreement provided, in pertinent part, that:
a. Agency agrees to review, approve, and implement written standard operating procedures [SOP's] for the Supply Division of Submarine Learning Center no later than 31 October 2014.
b. Agency agrees to an independent review of the existing Submarine Learning Center Supply Technician position descriptions no later than 31 October 2014.
c. Agency agrees to provide Supervisory Training for [Complainant], [employee], and [employee] of the Submarine Learning Center no later than 30 September 2014.
d. Agency agrees to review and clarify existing Civilian of the Quarter and Civilian Incentive Awards instruction and policies for the Submarine Learning Center workforce no later than 31 August 2014.
By email to the Agency dated June 1, 2015, Complainant alleged breach. In separate correspondence with an email date of June 5, 2015, Complainant expanded his discussion of breach claims. Complainant does not expressly identify any of the breach claims by its designated letter, as described above. However, a fair reading of the documents reflects that Complainant is alleging that the Agency, in general, is not in compliance with the above provisions. For example, in the June 5, 2015 correspondence, Complainant alleged that he "undertook a rewrite of the Supply SOP and submitted same to [Agency Official] in a timely manner and within the time stated at the mediation meeting. [Agency Official] delayed his review of the SOP for an extended period and not within the time allotted resulting in my being threatened with disciplinary action against me for not completing the SOP...[Agency official] has threatened to take away my supervisor authority and title if I do not comply with his demands, doing everything his way with no consideration of supply guidelines, instructions or policies."
The Agency did not issue a final decision within 35 days of Complainant's breach allegation. The instant appeal followed.
ANALYSIS AND FINDINGS
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. It further provides that if the complainant believes that the agency failed to comply with the terms of a settlement agreement, the complainant shall notify the Director of Equal Employment Opportunity of the alleged noncompliance with the settlement agreement. Id. The complainant may request that the terms of the settlement agreement be specifically implemented or request that the complaint be reinstated for further processing from the point processing ceased under the terms of the settlement agreement. Id.
Based on the present record, the Commission cannot determine whether the Agency has complied with the terms of the settlement agreement as it offered no evidence in response to Complainant's allegation of breach. Complainant has made a generalized assertion that the Agency has not complied with the settlement agreement. However, given the exceptionally spare record in this case, we are clearly unable to ascertain whether there is any merit to the breach claims or whether, alternatively, the Agency has indeed met its obligations pursuant to the settlement agreement.
Moreover, Complainant appears to address matters beyond the allege breach of the subject agreement, as noted above. For example, on appeal, Complainant states that the atmosphere in the division where Complainant is employed "continues to be extremely stressful based on the mistreatment and unprofessional behavior that [a named Agency official] continues to display." To the extent that Complainant claims that he has been subjected to reprisal and harassment, the Commission has previously held that such claims should be processed as a new, separate complaint, rather than as a breach allegation. See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990). Complainant is advised to contact an EEO Counselor regarding these matters if he wishes to pursue further these claims.
Accordingly, we REMAND this matter to the Agency for a supplemental investigation in accordance with the ORDER herein.
ORDER
Within sixty (60) days from the date this decision becomes final, the Agency is ORDERED to take the following action:
1. The Agency shall conduct a supplemental investigation and produce sufficient evidence for the Commission to determine whether the Agency breached the July 7, 2014 settlement agreement.
2. The Agency shall issue a new final decision regarding whether it is in compliance with the July 7, 2014 settlement agreement.
A copy of the Agency's supplemental investigation and new final decision whether the Agency breached the July 7, 2014 settlement agreement, shall be provided to the Compliance Officer as referenced herein.
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), 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 (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 (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 Complainants 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
March 2, 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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