Steve P. Poitra, Complainant,v.Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionJan 26, 2009
0120073725 (E.E.O.C. Jan. 26, 2009)

0120073725

01-26-2009

Steve P. Poitra, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.


Steve P. Poitra,

Complainant,

v.

Michael O Leavitt,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 0120073725

Agency No. HHSIHS02392007

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 26, 2007, dismissing his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.

Complainant and his coworker1, both District Engineer Technicians at the

California Area Indian Health Service in Sacramento, California, believed

that they were subjected to harassment, discrimination, and retaliation

by engineering staff. After each filed a complaint of discrimination,

they entered into a joint settlement agreement with the agency on March

7, 2003. The settlement agreement stated in relevant part:

All parties are attempting to remove current adverse action in

[complainant's] file. [A specific supervisor] will directly supervise

[complainant] and [his coworker]. [The supervisor] has also agreed

that they will be in charge of [their] own scattered projects.

[The supervisor] will be responsible for all aspects of the program

in the Redding District, input by Director only when necessary. When

technicians face a difficult problem with a contractors' attitude or

poor craftsmanship, [the supervisor] will intervene and be responsible

for effectively resolving the problem. PD's through GS-9 will [be]

clarified and finalized. IHS will provide all financial support which

allows technicians to qualify. Includes coursework, instruction, tuition

fees, and transportation and all necessary supplies. It is agreed that

if schooling causes overtime, according to IHS policy, no pay will be

compensated for overtime.

Soon after the settlement agreement was entered into, complainant was

not promoted to a GS-9 position because he was found to be not qualified,

which he alleged was in contrast to the terms of the settlement agreement.

Further, complainant alleged that he and a coworker were told that they

would have to travel, resulting in them being under the supervision of

different engineers and not the supervisor agreed upon in the settlement

agreement. Additionally, when complainant explained the situation to

a supervisor and stated that the actions were against the settlement

agreement, the supervisor told complainant and a coworker to go ahead

and refuse to do what they thought was against the settlement agreement

so the supervisor could discipline them and "put an end to it once and

for all." Complainant also alleged that a supervisor trapped complainant

in the corner of his office and pointed his finger in complainant's face.

Further, complainant alleged that he and a coworker were told that they

were "puppets" and they were wasting their time filing EEO complaints

because agency headquarters and the California Area Office (CAO) had a

way to "null and void" their settlement agreement.

On January 18, 2007, complainant and his coworker contacted the EEO

Director in writing to inform her that the settlement agreement was

breached. The record reveals that the EEO Director did not specifically

address their concerns, and instead referred them to an EEO Counselor.

On June 26, 2007, complainant and his coworker each filed separate

complaints of discrimination, as directed by the EEO Counselor. In his

complaint, complainant alleged discrimination on the basis of national

origin (Turtle Mountain Chippewa), race (Native American), religion

(Christian), color (red/brown), age (47), and in reprisal for prior

protected EEO activity when:

1. on unspecified dates, the agency violated the settlement agreement

when it put him under the supervision of engineering staff;

2. on unspecified dates, the criteria for GS-9 positions were constantly

changed so he could not be considered qualified, which violated the

settlement agreement, and additionally, other individuals who were

also not qualified were selected for the position on a temporary basis,

while he was not; and

3. since March 7, 2003, he has been harassed and retaliated against for

signing the settlement agreement.

On July 26, 2007, the agency dismissed complainant's complaint.

The agency found that complainant failed to state a claim of

discrimination because he did not indicate that he suffered direct or

personal deprivation which can be determined to be a harm or injury.

Complainant now appeals to the Commission.

As an initial matter, the record reveals that even though complainant's

complaint apparently referred to an alleged breach of the settlement

agreement, the agency dismissed his complaint for failure to state

a claim instead of conducting an inquiry of appellant's allegation of

breach. EEOC Regulation 29 C.F.R. �1614.504 provides that if complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of when the complainant knew or should

have known of the alleged noncompliance. The complainant may request that

the terms of the settlement agreement be specifically implemented or,

alternatively, that the complaint be reinstated for further processing

from the point at which processing ceased.

The regulations further provide that the agency shall resolve the

matter and respond to the complainant, in writing. If the agency has

not responded to the complainant, in writing, or if the complainant

is not satisfied with the agency's attempt to resolve the matter,

the complainant may appeal to the Commission for a determination as

to whether the agency has complied with the terms of the settlement

agreement or final decision.

In the present case, the agency did not process appellant's settlement

breach allegations in accordance with 29 C.F.R. �1614.504, described

above. Instead, the agency improperly processed the settlement breach

allegations as a new complaint. Therefore, we find that the agency's

decision dismissing the complaint for failure to state a claim was

improper, and that the allegations of breach must be remanded back to

the agency for proper processing in accordance with the Order set forth

herein.

Further, the agency failed to address complainant's claims of harassment

and retaliation. Complainant alleged that a supervisor told him that

he and his coworker were "puppets" and they were wasting their time

filing EEO complaints because agency headquarters and the CAO had a way

to "null and void" their settlement agreement. Complainant alleged

that even though this particular supervisor was not involved in the

previous EEO complaint and the settlement agreement, the supervisor

made a point to let complainant know that he had first-hand knowledge

of the specifics of complainant's previous EEO activity. Additionally,

complainant alleged that he was harassed with threats of discipline

for following the settlement agreement, was taunted by management and

engineers, and he was ultimately cornered by a supervisor who put his

finger in complainant's face and threatened him. We find that this

alleged behavior could reasonably deter an individual from pursuing

the EEO process, and these acts would be severe or pervasive to state

a claim of retaliatory harassment. Therefore, the agency must process

these claims as a separate EEO complaint and conduct an investigation,

as set forth in the Order herein.

CONCLUSION

Accordingly, the agency's decision is REVERSED and the matter is REMANDED

to the agency for further processing in accordance with this decision

and applicable regulations.

ORDER

1. Within 30 days of the date this decision becomes final, the agency

shall process the settlement breach allegation in accordance with 29

C.F.R. � 1614.504. Specifically, the agency shall conduct an investigation

and issue a written determination regarding complainant's allegation of

breach within 30 days of the date this decision becomes final. A copy

of the final decision must be submitted to the Compliance Officer,

as referenced herein.

2. Within 30 days of the date this decision becomes final, the agency

shall process complainant's retaliation and harassment claims as a

separate EEO complaint from complainant's breach of settlement agreement

claims. The agency shall investigate those claims in accordance 29

C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests

a final decision without a hearing, the agency shall issue a final

decision within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 (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 (R0408)

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 (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

January 26, 2009

Date

1 Complainant's coworker filed a separate appeal, docketed as Eugene

J. Ryan v. Department of Health and Human Services, EEOC Appeal

No. 0120073719.

??

??

??

??

2

0120073725

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

6

0120073725