[Redacted], Lyman D., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jul 7, 2021

Appeal No. 2021001580 (E.E.O.C. Jul. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lyman D.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2021001580 Agency No. DAL-14-0890-SSA DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated December 9, 2020, dismissing his settlement breach claim. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Paralegal Specialist, GS-12, at the Agency’s Houston Downtown Office of Disability Adjudication and Review in Houston, Texas. Believing that the Agency subjected him to unlawful discrimination, Complainant filed multiple EEO complaints, as well as an Unfair Labor Practice claim with the Federal Labor Relations Authority (FLRA). On November 17, 2016, Complainant and the Agency entered into a global settlement agreement (“Settlement Agreement”) to resolve these multiple matters. The Settlement Agreement provided, in pertinent part, that the Agency would: 1. Retroactively place Complainant in GS-14, Step 1, pay status effective January 30, 2012, and including all annual step increases. 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. 2021001580 2 2. Complainant will receive back pay and interest covering the period January 30, 2012, through the effective date of his retirement, November 12, 2016, with reductions for pay already received as a paralegal specialist for the period, with appropriate deductions. 3. On or before the effective date of his retirement, Complainant will receive back pay plus interest covering the period of January 30, 2012, through November 12, 2016. Complainant subsequently received his back pay in the 24th pay period of 2016. However, this payment included deductions for overtime previously worked because the Agency indicated Complainant had changed from a non-exempt employee to an exempt employee due to the other terms of the Settlement Agreement. By letter to the Agency dated September 11, 2020, 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 removed overtime pay that was previously authorized, worked and paid during the backpay period. Additionally, it deducted his overtime that was approved, paid and worked the year before the backpay period. Complainant argued the Agency should have paid him the overtime at the GS-14 hourly overtime rate instead of taking the overtime away. In its December 9, 2020 FAD, the Agency dismissed Complainant’s breach allegations finding the issue to be precluded by res judicata since Complainant had already raised this issue with FLRA, that Complainant did not timely file his notice of breach with the Agency, and that the Agency was in compliance with the Settlement Agreement. On appeal Complainant contends res judicata does not apply because FLRA’s consideration of whether the Agency repudiated the Settlement Agreement was a procedural dismissal and not a decision that addressed the merits of whether the Agency had breached the Settlement Agreement. Complainant further contends his claim for breach of the Settlement Agreement was timely filed, arguing that when a claim is rejected based on jurisdictional grounds, a complainant may present the matter de novo to the respondent agency for EEO processing and have it considered timely. The Agency did not file a brief on appeal. ANALYSIS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that if a complainant believes that the agency has failed to comply with the terms of a settlement agreement or decision, 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. In the instant case, Complainant received his back pay in late 2016. Therefore, he knew or should have known about the alleged breach upon receipt of his back pay. 2021001580 3 Nevertheless, Complainant did not notify the Agency of the breach until years later on September 11, 2020. He clearly had actual knowledge of the alleged breach at the time he filed a complaint with the Federal Labor Relations Authority in 2017, but he still chose not to notify the Agency until years later. Given that Complainant did not notify the EEO director within 30 days of when he knew or should have known of the alleged breach, his claim for breach of the Settlement Agreement is untimely and it was properly dismissed by the Agency. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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. 2021001580 4 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. 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 July 7, 2021 Date