0120151442
02-11-2016
Wilbur W.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilbur W.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120151442
Agency No. FSIS-2014-00754
DECISION
On March 20, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 12, 2015, dismissing his complaint of unlawful employment discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Intermittent Food Inspector (Slaughter), GS-5 at the Tyson's Food plant in Union City, Tennessee, and later at the Pilgrim's Pride plant in Hickory, Kentucky.
Previously, in October 2011, prior to the complaint before us, Complainant filed FSIS-2011-00930 (Complaint 1) alleging that he was discriminated against and harassed based on his age (57) 2 when (a) on some date prior to May 5, 2011, his supervisor pulled him from his workstation and threatened to write him up for missing work after his work schedule was changed without any notice to him, (b) from May 28, 2011 to August 18, 2011, he was scheduled to work fewer hours after returning from pre-deployment military duty, and (c) on August 18, 2011, he received notice that he was terminated from his employment as an Indefinite Intermittent Food Inspector, GS-5.
On November 19, 2013, the parties entered into a Last Chance Agreement (LCA) settling Complaint 1. The Agency agreed to:
Reinstate Complainant to his previous position and [re]assign him to Pilgrim's Pride, Establishment P-17340, Hickory KY.
Hold in abeyance the decision removing Complainant from the rolls of USDA effective August 18, 2011 for a period of up to one (1) year from the date of this signed Agreement.
Complainant agreed to:
... withdraw and not re-file all relevant outstanding administrative complaints or appeals, including but not limited to the EEO administrative process... including [Complaint 2]... relating to matters related to [Complaint 2] that occurred prior to the execution of this Settlement Agreement....
He will strictly adhere to (Agency) policies and work rules with no further attendance related violations; and, if he fails to do so, a removal decision may be implemented without further notice and without further rights of appeals, except for those specified herein.
He will be removed from the U.S. Department of Agriculture if there is any repetition of the type of misconduct described in the Letter of Termination... dated August 18, 2011, for a period of one (1) year from the date of the signing of this agreement. Such a removal will be effected based upon the Letter of Termination... and will not be preceded by an additional proposal and 30-day notice period.
He will maintain satisfactory attendance during the term of this agreement. "Satisfactory attendance" for the purposes of this agreement is determined by management and Agency policy....
He understands all the terms, procedures and conditions of the Family and Medical Leave Act (FMLA)....
Both parties agreed:
.... If Complainant successfully completes the abeyance period, he may request in writing... that the Letter of Termination... be removed from his Official Personnel Folder (OPF). Successful completion is defined as no request for disciplinary action or the execution of such during the abeyance period....
Any violation of the terms or conditions of this... [LCA] by Complainant will result in the issuance of a Notice of Proposed to Remove (NORP) and/or a Decision Letter removing him... without further appeal rights.
Complainant shall have the right to file an EEO complaint if he believes that the issuance of a subsequent NOPR and Letter of Decision for violation of the settlement agreement was issued as a result of illegal discrimination. Additionally, if Complainant receives subsequent discipline for violation of the settlement agreement, and Complainant is convinced that he did not violate the settlement agreement he shall retain the right to file an appeal with the MSPB. However, any such MSPB appeal may address only the merits of whether Complainant violated the settlement agreement. The MSPB may not challenge the legitimacy of the penalty of removal from employment....
The Complainant knowingly and voluntarily waives all rights under the Age Discrimination in Employment Act of 1967 (ADEA) which pertain to allegations of age discrimination as specified in the Complainant's complaint. ...Complainant may have 21 days from receipt of the agreement to review and consider this agreement before signing it. The Complainant further understands that he/she may use as much of this 21-day period as he/she wishes prior to signing and delivering this agreement. ... Complainant may revoke this agreement within seven (7) days of the Complainant's signing and delivering it to the agency. Federal law also requires us to advise the Complainant to consult with an attorney before signing this agreement....
Effective January 27, 2014, Complainant was assigned as an Intermittent Food Inspector (Slaughter), GS-5, to the Pilgrim's Pride, located in Hickory, Kentucky.
On September 8, 2014, Complainant filed a formal complaint (Complaint 2, the complaint before us) alleging that the Agency subjected him to discrimination and harassment based on his active and veteran military status when:
1. In June 2011, after completing military training that commenced in Fall 2010, he was not permitted to return to his Intermittent Food Inspector, GS-5, at the Tyson's Food plant in Union City, Tennessee;
2. In August 2011, he was notified that he was terminated from the above position;
3. On November 5, 2013, he entered into a Last Chance Agreement (LCA), but the terms of the LCA did not include compensation for the time he was out of work and he was also not permitted to make changes or corrections to the LCA;
4. In January 2014, as a condition of the LCA, he was assigned to the Pilgrim's Pride plant in Hickory, Kentucky;
5. In January 2014 (and February 2014), when he spoke over the telephone to the Jackson District Office serving his former duty location, an Employee Relations Specialist (ERS) yelled at him, and in June 2014, the same ERS harassed him with threatening telephone calls, warning him not to call or return to his former workplace, and reminding him of the LCA, and threatening him with termination; and
6. Since January 2014, he has been provided inadequate duty hours at his current duty location.
The Agency dismissed Complaint 2 for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). It reasoned that Veterans' status is not among the protected bases that fall within EEOC's purview.
The Agency also dismissed issue 3 for failure to state a claim, reasoning that if Complainant was dissatisfied with the LCA, the appropriate course of action was to notify the Agency's Employment Adjudication Division to request that the LCA be voided and Complaint 1 be reinstated. It dismissed issues 1 and 2 for starting the same claims raised in Complaint 1. 29 C.F.R. � 1614.107(a)(1). It also dismissed them for being resolved by the LCA. The Agency dismissed issues 1 - 4 for failure to timely initiate EEO counseling. It reasoned that Complainant initiated EEO counseling on August 4, 2014, beyond the 45 calendar day time limit.
ANALYSIS AND FINDINGS
As an initial matter, we agree with the Agency's finding that issues 1 - 5 fail to state a claim of discrimination because they were based on Complainant's military and veteran's status, which are not within the purview of bases covered by statutes enforced by the EEOC. 29 C.F.R. � 1614.103. On appeal, Complainant again does not raise a protected basis.
Complainant also is challenging the validity of the LCA. While we agree with the Agency that Complainant should have raised this matter with its Employment Adjudication Division, he did raise it with the EEO office, which should have referred the matter to the Employment Adjudication Division. Given that there is sufficient information in the record to resolve the matter, we will do so here. 29 C.F.R. � 1614.504(b).
The Older Workers' Benefit Protection Act (OWBPA) (OWBPA), which amended the ADEA effective October 16, 1990, provides that a waiver of ADEA claims is not considered knowing and voluntary unless, at a minimum: (1) the waiver is clearly written from the viewpoint of the complainant; (2) the waiver specifically refers to rights or claims under the ADEA; (3) the complainant does not waive rights or claims arising following execution of the waiver; (4) valuable consideration is given in exchange for the wavier; (5) the complainant is advised in writing to consult with an attorney prior to executing the agreement; and (6) the complainant is given a reasonable period of time in which to consider the agreement. Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30 1994) (citing 29 U.S.C � 626(f)(2)).
When coercion, misrepresentation, misinterpretation, or mistake occurs during the formation of the contract, assent to the agreement is impossible, and the Commission will find the contract void. This Commission examines coercion claims with much scrutiny. The party raising the defense of coercion must show that there was an improper threat of sufficient gravity to induce assent to the agreement and that the assent was in fact induced by the threat. Such a threat may be expressed, implied or inferred from words or conduct, and must convey an intention to cause harm or loss. Cannella v. Department of Veterans Affairs, EEOC Appeal No. 01995444 (December 5, 2000).
We find that the LCA met the requirements of the OWBPA.
In his complaint, Complainant expressed dissatisfaction with the terms of the LCA - the 12 month abeyance period, not being compensated for lost wages, and being assigned to the Pilgrim's Pride plant in Hickory, Kentucky, and complained that he was not permitted to make changes or corrections to the terms. On appeal, he argues that the LCA was forced on him - the Agency took advantage of his employment circumstances. These contentions do not meet the standard for duress. The LCA is valid.
Because the FAD is affirmed on the above grounds, we need not address the other reasons therein for dismissal.
The FAD is AFFIRMED.
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 (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
February 11, 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 Complainant also alleged discrimination based on reprisal for military status. The Agency dismissed this basis for not being within the purview of the EEO process.
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