Trey H.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Nov 30, 2016

0520170001 (E.E.O.C. Nov. 30, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Trey H.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Request No. 0520170001

Appeal No. 0120161822

Hearing No. 520-2012-00149X

Agency No. BOP20110293

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in EEOC Appeal No.
0120161822 (July 27, 2016). 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).

The record indicates that on October 12, 2012, the parties entered into a settlement agreement
resolving Complainant’s complaint. The settlement agreement provided, in pertinent part,
that:

(4) The Agency also agrees that Complainant will be permanently designated the
duties of Infection Control Coordinator as described in the Health System
Specialist position description, attached hereto as Exhibit 1. The Complainant

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.
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will be provided with a workspace and the tools necessary to complete these
duties, in accordance with relevant policy. This assignment will commence on
December 15, 2012.

(5) The Complainant agrees to maintain the clinical skills and knowledge associated
with his current position title, Physician’s Assistant, as he may be called upon to
perform those duties at the request of his supervisors, in the event of
institutional need or emergency. Institutional need or emergency does not
include pre-scheduled annual and/or sick leave or coverage for an individual
placed on a voluntary detail.

(6) The Complainant will additionally receive Priority Consideration for the next
Health System Specialist position in the Metropolitan Correctional Center, New
York, New York (MCC New York), that he applies for and is found qualified
for by the Federal Bureau of Prisons management. After Complainant has
applied for the Health Services Specialist position . . .

On January 6, 2016, Complainant alleged that the Agency breached provisions (4) and (6) of
the agreement. On March 31, 2016, the Agency determined that it did not breach those
provisions. Complainant appealed. The Commission affirmed the Agency’s determination of
no breach of provision (6) but reversed its determination of no breach of provision (4).
Specifically, the Commission found that the Agency was obligated to execute the necessary
documentation to effectuate Complainant’s ICC duties, described in provision (4), by reflecting
his ICC duties in his performance objectives and Official Personnel Files (OPF) as he
indicated.

In its request, the Agency maintains that it did not breach provision (4) since Complainant, a
Physician Assistant (PA), GS-11 was assigned to the ICC, GS-11 duties and the settlement
agreement does not provide for the change in his performance objectives and the OPF to reflect
such a change in duties. The Agency argues that since both PA, GS-11 (Complainant’s
position) and the ICC, GS-11 position are covered under the same performance standards, i.e.,
Standard Set Performance Standards for Bargaining Unit Professional, it is not required to
change Complainant’s performance log for his assigned ICC duties. We disagree. Under the
Performance Standards, it appears that PAs and ICCs are rated, i.e., Outstanding, Successful,
or Unsuccessful, based on their duties of their positions. Thus, if the official records were not
changed, then Complainant’s performance would be rated based on his duties of his PA
position despite the fact that he is, mostly, no longer performing the PA duties.

We also note that the Agency correctly indicates that our prior decision erroneously indicated
that Complainant was assigned to “this permanent position” under provision (4). The
settlement agreement did not provide that Complainant be assigned to the ICC position; rather,
the agreement provided that Complainant be permanently assigned ICC duties. This statement
in the prior decision was harmless error.

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After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120161822 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER

The Agency is ordered to take the following action:

Within 30 calendar days of the date this decision becomes final, the Agency shall
implement provision (4) of the October 12, 2012 settlement agreement, to the extent it
has not already done so. Specifically, the Agency shall change Complainant’s
performance objectives and Official Personnel Files to reflect his Infection Control
Coordinator duties.

The Agency is further directed to submit a report of compliance, as provided in the
statement entitled “Implementation of the Commission's Decision.” The report shall
include supporting documentation verifying that the corrective action has been
implemented.

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.

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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

November 30, 2016
Date