[Redacted], Allene S., 1 Complainant,v.Janet Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2021000678 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allene S.,1 Complainant, v. Janet Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2021000678 Agency No. IRS-13-0312-F DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision finding that it was in compliance with the terms of a September 9, 2019 settlement agreement. The Commission accepts the appeal. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Tax Examining Technician at the Agency’s facility in Ogden, Utah. Believing that the Agency subjected her to unlawful discrimination, Complainant filed an EEO complaint. On September 9, 2019, while the case was pending at the hearing stage, the parties entered into a settlement agreement to resolve the matter. The September 9, 2019 settlement agreement provided, in pertinent part, that: 2. Complainant agrees to immediately apply for disability retirement. (a) The Agency will assist Complainant in applying for disability retirement by completing its portion of the necessary Office of 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. 2021000678 2 Personnel Management (OPM) forms in a timely and accurate basis. The assistance and support provided by the Agency will be the same type and to the same extent the Agency provides to employees who seek disability retirement in general. Complainant will fill out forms SF 3112B, 3112D, and 3112E and provide them to the Agency. If the forms on their face are accurate, the Agency will process them in a timely manner. (b) Complainant agrees and understands that OPM has the exclusive authority to approve or deny Complainant’s disability retirement application. (c) Upon OPM approval of disability retirement application, Complainant will retire under FERS disability retirement. 3. At any point prior to June 30, 2020, if Complainant provides the Agency with adequate medical documentation and a request to be removed for medical inability, the Agency will remove Complainant from employment based on medical inability to perform her work duties. The Agency shall not initiate a removal action without just cause. 4. In the event that Complainant has not already retired or been removed pursuant to the paragraph above, Complainant agrees to resign from employment with the Agency no later than June 30,2020. (a) Complainant’s resignation pursuant to this paragraph will be automatic and no further action on Complainant’s part is required for the Agency to effectuate her resignation. The remarks section of Complainant’s SF-50 will provide that Complainant resigned for “medical reasons”. By letter to the Agency dated July 22, 2020, Complainant alleged that the Agency breached provisions 2(a) and 3, and requested that the Agency specifically implement the terms of those provision. Regarding 2(a), Complainant alleged that it provided Agency counsel with draft 3112 forms during the settlement negotiations and all other necessary forms by mid-March 2020, but the Agency waited more than two months before it began processing Complainant’s forms. Complainant complained that the completed application was not submitted to OPM until late May or early June 2020. Further, Complainant argued that, regarding the accuracy of the forms, the Agency official (hereinafter “Employee-S”) responsible for processing Complainant’s paperwork informed Complainant’s attorney that she never received Complainant’s draft forms, nor was Employee-S informed of the settlement agreement. Consequently, Employee-S filled out the forms without Complainant’s input. When Complainant received and reviewed the forms executed by Employee-S, Complainant believed they “result[ed] in harm to [her] application for OPM disability retirement.” 2021000678 3 Regarding provision 3, Complainant alleged that the Agency breached the provision when it processed an involuntary resignation for her on June 30, 2020, pursuant to provision 4, despite Complainant having timely requested her removal for medical inability on June 29, 2020. The written request, submitted by Complainant’s attorney, also included a detailed 9-page letter from Complainant’s physician. Complainant argues that in rejecting the adequacy of the physician’s letter, Agency counsel acted in bad faith. As a remedy, Complainant requested that she be reinstated and removed for medical inability. Further, she sought to have forms 3112B, 3112D, and 3112E retracted and replaced, expeditiously, because “OPM could render a decision on [her] application at any time.” In an undated decision, the Agency concluded that it was in compliance with the September 9, 2019 settlement terms. The Agency reasoned, with respect to provision 2(a), that it acted in a timely manner and that it was Complainant who waited six months (until March 2020), to submit her application to the Agency. Once it received Complainant’s documentation, the Agency processed her application within two months “despite facing significant obstacles as a result of the pandemic.” The application was forwarded to OPM on May 14, 2020. According to the Agency, OPM “typically takes at least six months to process,” making unlikely Complainant’s desire to have her application processed by June 30, 2020, following her delayed March 2020 submission to the Agency. In the Agency’s view, any delay was caused by Complainant herself. As for Complainant’s assertion that the Agency also violated 2(a) when it failed to use the forms provided to Agency counsel in August 2019, the Agency concluded that the agreement did not require it to refer to forms received prior to the execution of the agreement. Instead, the September 9, 2019 settlement obligated Complainant to provide the forms on an unspecified future date. When Complainant failed to provide the forms with her application in March 2020, “as contemplated by the terms of the agreement”, the Agency stated that it followed its normal procedure for completing the forms. Finally, the Agency noted that there was no evidence showing that the forms completed by Agency officials were inaccurate. The Agency found that it was in compliance with provision 3, because Complainant’s request to be removed for medical inability was based on insufficient medical documentation. Although the February 19, 2020 letter from Complainant’s doctor stated that she should not continue working as a Tax Examining Tech, he did not clarify whether Complainant could be accommodated in another position. Further, Complainant continued to work in the position well beyond February 19, 2020, and stated she was able to do so until the end of 2020. Complainant filed the instant appeal. 2021000678 4 ANALYSIS Timeliness of Appeal As an initial matter, we consider the Agency's assertion that Complainant's appeal is untimely filed and therefore should be dismissed. EEOC Regulation 29 C.F.R. § 1614.402 provides that appeals to the Commission must be filed within 30 calendar days after complainants receive notice of the agency's decision. The Agency argues that its decision was served, via email, to Complainant and her attorney on September 4, 2020. EEO complaint processing regulations at 29 C.F.R. Part 1614 does not expressly address or define service by electronic mail. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination to timeliness” Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). We do not find that the Agency has met that burden. As noted above, the Agency’s decision is undated. The Agency contends that Complainant and her representative received the decision on September 4, 2020. However, the Agency has not provided the email used to transmit the decision, or any documentation or declaration regarding when Complainant viewed the email. Moreover, the record is devoid of evidence that Complainant was aware and agreed to receipt of Agency correspondence via email . C.f. Alton F. v. Dep’t of Homeland Security, EEOC Appeal No. 2019004825 (Aug. 10, 2020) (dismissal for untimely filed complaint reversed when record did not contain supportive documentation of email receipt); Jessica E. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120181534 (June 29, 2018) (absence of evidence showing Complainant informed of and agreed to correspondence by email cited in reversing Agency dismissal for untimeliness). Consequently, based on the instant record, we are unable to determine when the thirty-day time limit was to begin and the Agency has failed to meet its burden in showing the appeal was untimely filed. Breach of Settlement Agreement 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. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep’t of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract’s construction. Eggleston v. Dep’t of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984). 2021000678 5 Provision 2(a) In provision 2, Complainant agreed to “immediately” apply for disability retirement, and more specifically, as set forth in 2(a), she was to “fill out forms SF 3112B, 3112D, and 3112E and provide them to the Agency.” The Agency, in turn, was required to complete “its portion of [the forms] in a timely and accurate basis.” Complainant does not dispute that she waited approximately six months to submit her application to the Agency on March 19, 2020, which is far from “immediately.” Moreover, Complainant does not provide justification for the delay. Therefore, we find that Complainant’s own inaction undercuts any argument she presents regarding the Agency’s processing time. Regarding Complainant’s submission of forms, she argues that draft forms were provided to the Agency in the days before the agreement was entered. In contrast, the Agency states that the agreement did not require it to use these draft forms discussed during negotiations, but rather, “the settlement terms contemplated that Complainant would submit factually accurate forms, presumably together with her application” (emphasis added). When Complainant did not include such forms with her application, in March 2020, the Agency contends it proceeded to complete the forms independently. While perhaps not definitive evidence of bad faith, as argued by Complainant, we do find Agency counsel’s statements to be disingenuous. On the one hand, he argues that the plain wording of the agreement does not require use of the draft forms provided. Yet, in the next breath, he speaks of what the settlement “contemplates” and what “presumptions” should be made. It seems reasonable to have used, or at least reviewed, the forms provided by Complainant during the time of the settlement if no other forms were later offered. At the same time, it is clear that Complainant is dissatisfied with the answer provided in the completed forms. Even a cursory review reveals stark differences.2 However, the settlement language did not require the parties to adhere to a particular version of the forms. Rather, the prerequisite to the Agency’s processing of Complainant’s application was “if the forms on their face are accurate”. If Complainant, who was represented by an attorney, wanted the forms to reflect specific information and answers, such intentions should have been reduced to writing. 2 The “draft” Form 3112B “Supervisor’s Statement”, as partially completed by Complainant, answers “yes” to questions regarding less than fully successful performance, unacceptable attendance for the position, and a resulting impact on the office. The executed form, signed by Complainant’s supervisor, answers these same questions in the negative. Form 3112D “Agency Certification of Reassignment and Accommodation Efforts”, as drafted by Complainant, states “no” with regard to whether reasonable efforts for an accommodation were made. This was due to “medical evidence presented shows that an accommodation is not possible.” Similarly, the draft indicated that “Reassignment not possible.” Contrastingly, the executed form answers “yes” and describes accommodations provided. Complainant was not reassigned to a vacant position, according to the signed form, and a history of two declined offers in June 2013, an accepted detail in December 2014, and the acceptance of a position in January 2014 is noted. 2021000678 6 The instant record indicates that Employee-S had the forms completed by relevant Agency officials, and there is no evidence that the executed forms are inaccurate. Therefore, we do not find that Complainant has shown breach of provision 2(a). Provision 3 Complainant argues that the Agency erred in processing her resignation, because she had submitted a request for removal due to medical inability in accordance with provision (3). In keeping with the time limit, “[a]ny point prior to June 30, 2020”, the record reflects that Complainant made her request on June 29, 2020 . Consequently, we find that use of provision (4) was not triggered. Next, we must consider the adequacy of the medical documentation provided by Complainant, namely a nine-page letter from her physician (hereinafter “Doctor-C”). Doctor-C explained that the document contains “answers to each of the five items listed of the section entitled ‘Medical Document Requirements’” of Form 3112C “Physician’s Statement”. In the February 19, 2020 letter, Doctor-C states he has treated Complainant since 2015. He lists her conditions, medications, as well as the procedures she has undergone between 2001 and 2015. According to Doctor-C, although her ability to perform the essential functions of her position worsened as her symptoms increased, she was able to adequately perform her job until September 2017, when she was placed on FMLA. Despite her difficulties, Complainant was determined to continue working as she had no other source of income. In April 2018 she requested a reasonable accommodation for her five-pound lifting restriction. Currently, however, Complainant’s symptoms have exacerbated and include the following conditions: debilitating whole-body pain, vitamin and mineral deficiencies, chronic anemia, numbness in hands and feet, brain fog. During flare-ups, Complainant experiences extreme pain, blinding headaches, exhaustion, nausea, and vomiting. Doctor-C stated that her “mental and physical faculties have been so severely compromised . . . [Complainant] is unable to perform several of the essential functions . . . .” Her “brain fog” impacts her memory, requiring her to write everything down and seek help from others to complete tasks. She is unable to lift, push or pull more than ten pounds, and must ask co-workers to lift boxes or push carts. As a result, it is difficult for Complainant to process cases without mistakes and she is only able to complete half of her workload. In its decision, the Agency stated the proffered documentation was inadequate because Doctor-C did not clarify whether Complainant could be accommodated in another position. Further, the Agency noted that Complainant continued to work, in direct conflict with her stated limitations, well beyond the date of Doctor-C’s letter. In response to her appeal, the Agency also reiterates its belief that Complainant’s repeated requests to continue working until the end of December 2020 further weaken her medical inability request.3 3 Complainant counters that since the onset of the COVID-19 pandemic the Agency has permitted telework, an accommodation she did not previously enjoy, which enables her to perform her job duties. 2021000678 7 The language of provision 3 directs the Agency to remove Complainant for medical inability “to perform her work duties”(emphasis added). Similarly, in Form 3112C, Complainant’s physician was asked to provide “specific information to show why this patient is not able to perform his or her duties” (emphasis added).4 Therefore, we find that the Agency applied the incorrect standard in evaluating Complainant’s medical documentation to demonstrate an inability to work generally. Additionally, Complainant argues that Agency counsel refused to cooperate with her efforts to address any perceived inadequacies in the proffered medical records prior to separating her by involuntary resignation. She describes unanswered phone calls and evasive emails that failed to address her inquiries in any meaningful way. In response to the appeal, the Agency contends that “due to the lateness of the request, there was insufficient time for Complainant to obtain sufficient medical information.” As noted above, we determined that Complainant’s request for removal for medical inability was timely submitted. There are also indications that Agency counsel conducted the analysis of Complainant’s application for removal for medical inability. Rather, the processing of her application should have been performed by Agency officials typically assigned such duty. Therefore, we find that the Agency has breached provision 3 of the settlement agreement. When breach is found, there are two options available: (1) specific performance of the terms of the agreement, or (2) reinstatement of the complaint from the point processing ceased. 29 C.F.R. § 1614.504(c). Here, since Complainant has requested specific performance, we will remand the matter to the Agency for full compliance with provision 3. CONCLUSION The Agency’s decision finding no breach of provision 2(a) was proper and is AFFIRMED. The Agency’s decision finding no breach of provision 3 is hereby REVERSED and provision 3 is REMANDED to the Agency in accordance with the ORDER below. ORDER Within thirty (30) calendar days of the date this decision is issued the Agency will take the following actions regarding provision 3: properly review Complainant’s July 29, 2020 application, and supporting medical documentation, for removal for medical inability. The standard applied and information relied upon shall be explicitly stated. Moreover, prior to making a final determination, Complainant shall be provided the opportunity to address inadequacies. 4 The “General Information” portion of Form 3112C “Physician’s Statement”, explains that a person is only entitled to disability retirement benefits when it has been shown she is unable to perform in the current position or “within a vacant position, in the same agency and commuting area at the same grade or pay level and tenure, for which the employee is qualified for reassignment.” However, the instant record indicates that this standard, for OPM disability retirement, is separate and distinct from the approval standard used for removal for medical inability. 2021000678 8 A report of compliance will include documentation and/or declarations stating whether Complainant’s application was granted or declined, the standard applied, and reasoning in making the decision. If Complainant’s application is granted, the Agency shall revoke the resignation executed on June 30, 2020, and take all administrative actions necessary to effectuate provision (3). In the event the application is denied, Complainant’s resignation shall stand. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2021000678 9 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021000678 10 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 February 22, 2021 Date