Patrick D. Cain, Complainant,v.Gary Locke, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionMay 28, 2009
0120091377 (E.E.O.C. May. 28, 2009)

0120091377

05-28-2009

Patrick D. Cain, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.


Patrick D. Cain,

Complainant,

v.

Gary Locke,

Secretary,

Department of Commerce,

Agency.

Appeal No. 0120091377

Agency No. 076300094

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated December 23, 2008, finding that

it was in compliance with the terms of the April 30, 2008 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.

The settlement agreement provided, in pertinent part, that:

The agency will issue a check payable to complainant in the lump sum of

$2,000.00 in full compensation for all claims complainant has against

the agency, including any claim to attorney's fees and costs. This

payment will be made within 45 to 60 days of the full execution of

this Agreement.

The record reflects that on July 31, 2008, the agency's EEO Manager sent

the Chief of the Program Implementation Division, Office of Civil Rights,

a notification of compliance letter indicating that the agency was in full

compliance with the terms of the settlement agreement executed between

complainant and the agency. Specifically, it was stated that on June 9,

2008, the agency issued a payment to the Department of Treasury in the

amount of $2,000.00. Complainant was provided a copy of this letter.

By letter to the agency dated November 10, 2008, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency specifically implement its terms. Specifically, complainant

alleged that the agency breached the settlement agreement when it issued

a check in the amount of $2,000.00 to the Department of Treasury rather

than directly to him as agreed upon. Notably, complainant admitted

that his breach claims were untimely filed, and his reasons were that

"I was in congestive heart failure and I am helping to take care of my

93 year old mother in home health care, and this is the reason that

I haven't had time." In its FAD, the agency dismissed complainant's

breach claims as untimely, pursuant to 29 C.F.R. � 1614.504(a).

In his appeal statement, complainant proffered the same reasons for his

untimely filing of breach claims. In its appeal response, the agency

asserts that:

it mailed the compliance letter to complainant on July 31, 2008.

Therefore, complainant knew or should have known of the alleged

non-compliance no later than August 6, 2008.1 As a result, complainant

was required to file his written allegation of noncompliance with the

agency no later than September 5, 2008. However, complainant did not

file his written allegation of noncompliance until November 10, 2008.

Complainant does not dispute the agency's findings that he knew of

the alleged noncompliance by August 6, 2008. He does not deny that he

failed to timely file his written allegation of noncompliance. Instead,

he argues that he could not timely file his allegation because he "was

in congestive heart failure" and "helping to take care of my 93 year old

mother in home health care." Complainant attaches two documents to his

appeal to support his claims. While both documents support the truth

of his assertions regarding the care of his now-deceased mother and the

existence of his own health conditions, these letters do not show that he

suffered such incapacitation that he was incompetent and unable to meet

the requisite time limit for his noncompliance allegation. His claim that

he was caring for his mother belies any claim that he was unable to handle

his affairs as a result of his congestive heart failure. Furthermore,

the letter from Mount Washington Family Medicine states that complainant's

"health conditions have been under good control" even given his care of

his mother. Because complainant cannot show that he was incapacitated

to such an extent that he could not capably handle his affairs or timely

file his written allegation of breach, no grounds exist for permitting

equitable tolling of the 30-day time limit. See Fontenotv. U.S.P.S.,

EEOC Request No. 05990216 (1999); see also Crear v. U.S.P.S., EEOC Appeal

No. 01921543 (1992). Therefore, complaint did not timely file his claim

of breach and the agency's dismissal was proper.

In accordance with 29 C.F.R. � 1614.504(a), allegations of noncompliance

of settlement agreements must be made in writing within 30 days of when

the complainant knew or should have known of the alleged noncompliance.

We have consistently held, in cases involving physical or mental health

difficulties, that an extension is warranted only where an individual is

so incapacitated by his condition that he is unable to meet the regulatory

time limits. See Davis v. United States Postal Service, EEOC Request

No. 05980475 (August 6, 1998); Crear v. United States Postal Service,

EEOC Request No. 05920700 (October 29, 1992).

With respect to complainant's claim that the agency breached the provision

at issue, the record shows that he should have known, no later than

August 6, 2008, that the agency was not complying with this provision.

Yet he failed to lodge an allegation of noncompliance until November 10,

2008. Further, complainant has not shown that he was so incapacitated

by his condition that he was unable to meet the regulatory time limits.

Therefore, the agency's dismissal for complainant's failure to file his

breach allegations in a timely manner was proper.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision

finding that complainant failed to file his breach claims in a timely

manner.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 (S0408)

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 (Z1008)

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

May 28, 2009

__________________

Date

1 In its FAD, the agency credited complainant with the additional five

days for mail delivery.

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0120091377

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091377