0520160148
03-03-2016
Torie A.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Torie A.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520160148
Appeal No. 0120152751
Agency No. 9H1C11017
DECISION ON REQUEST FOR RECONSIDERATION
On February 9, 2016, the Commission's Office of Federal Operations (OFO) notified the parties that it was reconsidering the above referenced case on its own motion.2 EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
During the period at issue, Complainant was a former employee at the Agency's Nellis Air Force Base in Las Vegas, Nevada.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process concerning her non-selection for a cook's position in March/April 2011. The EEO counseling report shows that, sometime before applying for the position in question, Complainant had been laid off from her position at the base golf course in a "BBA" (Business Based Action) for alleged budgetary reasons. As a result, she asserted she was entitled to reemployment priority ("RPL") and should have been offered the cook's position.
On October 11, 2011, Complainant and the Agency entered into a settlement agreement to resolve the above matter. The October 11, 2011 settlement agreement provided, in pertinent part, that:
1. The Complainant will receive from the Agency, placement on the Reemployment Priority list (RPL) for six (6) months under priority placement with the Sunrise Vista Golf Course and priority consideration for twelve (12) months with all Non-Appropriated Fund (NAF) activities beginning October 11, 2011. Additionally, during the six (6) month period under priority placement, Complainant may request reconsideration for any position for which she is found not qualified with the following limitations. Prior to requesting reconsideration, Complainant must meet with the NAF Human Resources Officer for discussion regarding her qualifications. If Complainant is unsatisfied with the explanation for non-qualification, she may request the NAF Human Resources Officer have the decision reviewed by higher headquarters on no more than two (2) occasions. The Agency cannot guarantee that higher headquarters will agree to neither review any decision nor issue any written opinion. Complainant understands that she must keep her records and employment applications up to date through NAFjobs.org. The NAF Human Resources Office cannot accept hand delivered materials for job consideration.
By letter to the Agency dated January 12, 2015, Complainant alleged breach of the subject agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that her representative learned another employee was treated more favorably than Complainant with regard to her reinstatement rights following a BBA layoff. Complainant requested that her underlying EEO complaint be reinstated.
In its July 31, 2015 final decision, the Agency determined no violation of the settlement agreement occurred. The Agency further stated that its EEO office attempted resolution of the breach claim with no success. The Agency stated that the alleged breach violation was eventually consolidated for processing with another EEO complaint that was filed on March 12, 2015 (Agency Case No. 9H1C15011). The Agency stated that as a result of a legal review of Agency Case No. 9H1C15011, the "non-compliance allegation" was dismissed for failure to state a claim.3
In our prior decision, OFO found that the record was devoid of any documentation reflecting the Agency's determination that no breach occurred. The decision noted that it is the burden of an agency to provide evidence in support of its final decisions. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). The decision also recognized that the Agency seemed to suggest that the breach claim was consolidated with a subsequent March 12, 2015, complaint identified as Agency Case No. 9H1C15011. The breach claim was then dismissed for failure to state a claim.
In its brief, the Agency again argues that it did not breach the agreement. However, again, the Agency has failed to provide any documents, sworn statements, or evidence to support its contention that it complied with the settlement agreement. Consistent with Commission precedent, we concur with our initial decision and remand the complaint to the Agency for a supplemental investigation as set forth below.
Because this decision considers the record in its entirety for the first time, the parties are entitled to a right to request reconsideration on the decision herein.
ORDER
Within 30 days of the date this decision becomes final, the Agency shall conduct a supplemental investigation of Complainant's breach claim, which shall be processed under 29 C.F.R. � 1614.504. The supplemented record shall include, but is not necessarily limited to, a detailed statement from Complainant explaining why she believes the settlement agreement was breached, and statements from appropriate management officials, as well as any other relevant documentary evidence, addressing Complainant's breach allegations.
Within 60 calendar days of the date that this decision becomes final, the Agency shall issue a new decision, with appeal rights to this Commission, concerning whether there was a breach of the subject settlement agreement. If breach is found, the Agency shall reinstate Complainant's underlying complaint of a discriminatory non-selection for investigation and continued processing.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (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.
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
March 3, 2016
__________________
Date
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.
2 The record reflects that OFO inadvertently issued its initial decision prior to receiving the Agency's response brief in this matter. OFO had granted the Agency an extension until January 25, 2016 to submit its brief. We now consider the entire record including the Agency's brief.
3 It is not clear whether Complainant's claim concerning her non-selection was reinstated and consolidated with Agency Case No. 9H1C15011, or whether her breach claim itself was consolidated with Agency Case No. 9H1C15011. We do not have the records from Agency Case No. 9H1C15011.
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