[Redacted], Dulce P., 1 Complainant,v.William P. Barr, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2020003870 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dulce P.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice, Agency. Appeal No. 2020003870 Agency No. OBD-2017-00569 DECISION On April 29, 2020 Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning her belief that the Agency was not in compliance with the terms of the settlement agreement entered into by the parties on November 26, 2019. 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 Believing that she was subjected to unlawful discrimination, Complainant filed a formal EEO complaint. While the case was pending before an EEOC Administrative Judge, the parties executed a settlement agreement to resolve the matter. The November 26, 2019 settlement agreement provided, in pertinent part, that: (c) The Agency will send a corrective SF-1150 to Complainant’s current employer to restore 157.5 hours of sick leave and 236.5 hours of annual leave within 60 days of the final effective date of this Agreement, noting that the restoration of leave is pursuant to 5 U.S.C. § 5596 and § 6304(d). The Agency will send the SF-1150 also to Complainant’s counsel. 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. 2020003870 2 According to Complainant, on January 9, 2020, her attorney informed the Agency, through its attorney, that her leave had not been restored and the “use-or-lose” expiration date was incorrect. The Agency responded, explained Complainant, by stating that Department of Health and Human Services (HHS) needed to resolve the issue. Next, Complainant contacted HHS and the FBI, but was told that the Agency needed to submit a corrected SF-1150. Complainant alleges that the Agency failed to provide HHS, or her, with a copy of the SF-1150 by February 2020 as required by the agreement. After these failed efforts, contends Complainant, she alleged breach. On February 18, 2020, after multiple emails from Complainant’s attorney, the Agency provided the SF-1150 to HHS but continued to assert that HHS was responsible for correcting the leave balances. By March 4, 2020, Complainant confirmed that her leave balance was accurately updated, but the “use-or-lose” date remained incorrect.2 On April 1, 2020, the Agency notified Complainant that it was in compliance with the settlement agreement. With respect to Complainant’s assertion that the “use-or-lose” date matter was still outstanding, the Agency responded by stating that it did not agree to such a change and did not have the power to effectuate such modification. Thereafter, on April 29, 2020, Complainant filed the instant appeal. She contends that the Agency continues to be in breach of the agreement due to: the incorrect “use-or-lose” date; failing to provide evidence that her leave was restored; and by providing misleading information which “dragged the process out for several months” and caused Complainant to incur additional attorney’s fees. As a remember, she requests that the Agency comply with provision (2) by submitting the paperwork required to correct the “use-or-lose” date and pay the attorney’s fees incurred to obtain compliance. ANALYSIS Timeliness of Appeal 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. Further, if the complainant believes that the Agency has failed to comply with the terms of the agreement, she shall notify the EEO Director, in writing, within thirty days. See id. The agency, in turn, is required to resolve the matter and respond to the complainant in writing. See 29 C.F.R. 1614.504(b). If it fails to do so within thirty-five days, the complainant may file an appeal with the Commission. See id. In its initial response to Complainant’s appeal, the Agency argues it should be dismissed as premature because Complainant only notified the EEO Director of the breach allegation on April 29, 2020, the same day she filed the appeal. 2 The date recorded was January 2, 2021. According to Complainant, it should have been January 2, 2022. 2020003870 3 Both the settlement agreement itself and EEOC Regulations require Complainant to inform the EEO Director, contends the Agency. Therefore, the instant appeal should be dismissed and Complainant may file a new appeal “if she wishes to appeal the Agency’s forthcoming determination.” As recounted above, Complainant contacted the Agency’s legal counsel regarding the breach claim. The record is replete with email correspondence between Complainant’s attorney and Agency counsel beginning January 9, 2020, when Complainant initiated efforts to correct a “mistake” made in leave restoration and the “use-or-lose” date. Approximately a month later, in a February 11, 2020 email, Complainant’s attorney observed that she had not heard from Agency counsel in “almost three weeks” and explicitly noted: “The Agency is officially in breach”. On February 18, 2020, Agency counsel explained that she was still working to resolve the issues and attached a copy of the SF-1150. While Complainant did not notify the Agency’s EEO Director of the alleged breach, her actions were sufficient to put the Agency on notice of the breach claims and provided numerous opportunities to respond. The Commission has previously held, under similar circumstances, that such breach allegations were timely raised. See Johnson v. United States Postal Service, EEOC Appeal No. 01A33052 (April 15, 2004)(sending a breach claim to Agency’s legal counsel, rather than the EEO office, is sufficient to put Agency on notice); Alfonso G. Ramirez, Complainant, EEOC Appeal No. 0120114206 (Dec. 21, 2012)(contacting Human Resources Manager was adequate to provide Agency notice of breach allegation); see also, William J. Gordy, Sr., Complainant, EEOC Appeal No. 01A14907 (Oct. 17, 2002)(Agency found to have been given sufficient notice of breach, even after filing of appeal). Therefore, we find that the appeal is timely.3 Merits of Breach Allegation On June 26, 2020, the Agency issued a final decision finding it has complied with the settlement terms. According to the decision, upon receipt of Complainant’s breach allegation it conducted an investigation which found: the SF-1150 was sent to HHS directing the restoration of leave; Agency counsel contacted HHS and learned that the “use-or-lose” date had been corrected by its payroll provider (Defense Finance and Accounting Services); Agency counsel confirmed with DFAS that all leave restoration and date corrections have been completed; and a May 29, 2020 Leave and Earnings Statement for Complainant reflects the correct date (i.e. 1/1/22). With respect to the “use-or-lose” date, the Agency reasoned that since the settlement language did not “explicitly address” the matter, it was “not required to do anything specific. . . .” Further, the error4 was made by Complainant’s current employer, HHS, or DFAS, since they were responsible for inputting the “use-or-lose” date upon receipt of the corrective SF-1150. By May 29, 2020, states the Agency, records reflected the correct “use-or-lose” date. 3 This reasoning is equally applicable to the Agency’s subsequent, alternative timeliness argument - that Complainant should have alleged breach within thirty days of receiving a copy of the SF- 1150 on February 18, 2020, but instead she waited until April 29, 2020 to inform the EEO Director. 4 Using the year 2021, instead of 2022. 2020003870 4 The record reflects that the Agency was obligated to take the actions set forth in the November 26, 2019 settlement agreement within sixty days. It appears that on December 16, 2019 the Agency submitted the “corrective SF-1150”. Prior to the expiration of the time limit, on January 9, 2020, Complainant’s counsel alerted the Agency to a possible error in implementing the terms. What followed was weeks, and then months, of phone calls and emails by Complainant and her attorney with Agency counsel.5 It is evident that in many instances, the Agency’s responses were delayed or ineffective. Further, we find that without the intervention by Complainant’s attorney, the restoration of Complainant’s leave may not have been achieved. Quite reasonably, Complainant raises the issue of her entitlement to attorney’s fees. Attorney’s Fees Attorney's fees are available for successful compliance efforts when such efforts are necessary. Peralta v. Dep't of Agric., EEOC Appeal No. 01961850 (May 5, 1997). The Commission has awarded attorney's fees and costs in connection with securing compliance with a settlement agreement. See e.g., Peralta, EEOC Appeal No. 01961850 (awarding attorney's fees and costs where attorney's actions, including filing of an appeal, helped secure compliance with a settlement agreement); O'Neal v. U.S. Postal Serv., EEOC Appeal No. 0120062891 (Apr. 18, 2008) (awarding attorney's fees and costs where there was no finding of breach but attorney's efforts secured compliance). In this case, however, the settlement agreement language simply required the Agency to “send a corrective SF-1150 to Complainant’s current employer” within sixty days. The actual restoration of the specified hours of annual leave and sick leave was to be conducted by the recipient (i.e. “Complainant’s current employer”). Therefore, we do not find that the efforts expended by Complainant’s attorney were directly related to obtaining the Agency’s compliance under provision (c) (i.e. forwarding the SF-1150). She is not entitled to attorney’s fees. CONCLUSION The Agency’s decision finding it is in compliance with the settlement agreement is hereby AFFIRMED. 5 Complainant acknowledges that the Agency did provide her attorney with a copy of the SF-1150 on February 18, 2020. While she argues this was untimely, a plain reading of provision (c) shows that the sixty-day time limit is included in the preceding sentence, regarding submission of the form to Complainant’s current employer. The requirement that “The Agency will send the SF- 1150 also to Complainant’s counsel” is not bound by a specified time, nor has Complainant shown that the delay resulted in any more than de minimus harm. 2020003870 5 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. 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 (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. 2020003870 6 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 February 2, 2021 Date