0520120577
02-06-2013
Daniel J. Torquemada, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce, Agency.
Daniel J. Torquemada,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce,
Agency.
Request No. 0520120577
Appeal No. 0120121604
Agency No. 54-2012-01693
DENIAL
The Agency timely requested reconsideration of the decision in Daniel J. Torquemada v. Department of Commerce, EEOC Appeal No. 0120121604 (July 11, 2013). 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(b).
On October 17, 2011, Complainant contacted the EEO office regarding claims of discrimination on the bases of disability and in reprisal for prior protected activity. Informal efforts to resolve Complainant's concerns were unsuccessful, and on November 29, 2011, Complainant filed a formal EEO complaint in which he alleged the following:
1. On January 27, 2011, Deputy Special Agent In Charge (MS), Southwest Division, rescinded the accommodation(s) he had been granted for almost three years, issuing him a "Clarification of Medical Documentation" memorandum stating that he had been "assigned tasks which fell within [his] medical restrictions" and that "in order for a determination to be made regarding [MS's] ability to continue assigning appropriate duties," MS requested updated medical documentation;
2. Over the next few months following MS's January 27, 2011, memorandum, Complainant continued to receive letters concerning his medical condition and threats to remove him from his position;
3. On June 7, 2011, Special Agent in Charge (DM), Southwest Division, issued him a "Notice of Proposed Separation for Inability to Perform," which was dated June 3, 2011;
4. On or around August 15, 2011, Acting Director (AR), Office of Law Enforcement, issued him a "Notice of Decision on Separation for Medical Inability," stating that he was to be separated from federal service because of his "medical inability to perform the duties of [his] position." Complainant noted that he had previously been encouraged to keep working and to not seek disability retirement. However, the Agency's removal came after he was no longer eligible for a more lucrative disability retirement annuity;
5. The Agency denied Complainant's request to delay his separation for three months to allow him to finish the year, resulting in his inability to maximize his "high 3" and annual leave, as well as his inability to receive an annual performance bonus, estimated to be $4,000; and
6. Complainant was permanently separated from federal service on September 24, 2011.
In its final decision, the Agency dismissed claims 1 through 5 on the grounds that these claims were initiated by untimely EEO Counselor contact. The Agency dismissed claim 6 on the basis that it failed to state a claim and, in the alternative, on the grounds that Complainant first filed an appeal regarding his termination with the Merit Systems Protection Board (MSPB). Finally, the Agency dismissed the claim of reprisal on the grounds that Complainant's allegations did not assert that he was subjected to retaliation for engaging in protected EEO activity.
In our previous decision, the Commission determined that a fair reading of the allegations in Complainant's complaint and counseling report revealed that Complainant was raising a single claim of ongoing denial of a reasonable accommodation, which culminated in his termination from the Agency. The Commission noted that Complainant retired effective September 24, 2011, in lieu of termination in order to receive retirement benefits. As such, we determined that Complainant asserted that the Agency's failure to accommodate him resulted in his constructive discharge. We further found that, because Complainant's EEO counselor contact was timely as to his overall denial of reasonable accommodation claim, the Agency improperly dismissed claims 1 through 5 for untimely EEO Counselor contact. Regarding the Agency's dismissal of claim 6 for failure to state a claim, the Commission found that, by asserting that the incidents of the denial of reasonable accommodation led to his constructive discharge, Complainant sufficiently alleged a personal loss or harm to a term, condition, or privilege of his employment for which relief may be available under the Rehabilitation Act.
The Commission also rejected the Agency's dismissal of claim 6 on the basis that Complainant elected to challenge his termination with the MSPB. Specifically, the Commission noted that although the Commission has long held that voluntary withdrawal of an MSPB appeal does not negate a prior election, the Agency did not provide any evidence to rebut Complainant's assertion that he was not aware of his need to make an election. We noted that the Agency's August 15, 2011, termination letter advised Complainant that he could appeal his termination to MSPB, but did not mention the EEO complaint process. Finally, the Commission affirmed the Agency's dismissal of Complainant's reprisal claims. Consequently, the Commission reversed the Agency's dismissal of Complainant's disability claims 1 through 6 and remanded these matters to the Agency for further processing.
In its request for reconsideration, the Agency argues that claim 5 should be dismissed on the basis on untimely EEO Counselor contact. The Agency argues that claim 5 is not a reasonable accommodation claim because it concerns a "procedural issue" regarding Complainant's goal of optimizing his financial situation with respect to his proposed termination. The Agency further argues that its August 15, 2011, termination letter to Complainant provided him with MSPB regulations that include his rights regarding mixed-case appeals. The Agency also argues that because Complainant filed his MSPB appeal one week before initiating EEO Counselor contact regarding his termination, the Agency never was obligated to notify him of his mixed-case rights. The Agency does not dispute our previous decision's determination that Complainant alleged constructive discharge and failed to state a reprisal claim under EEO regulations.
We note that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.
The Agency asserts that claim 5 is not related to Complainant's reasonable accommodation claim. However, we find that the denial of Complainant's request to delay his separation was precipitated by the Agency's denial of his requested accommodation, which resulted in Complainant's separation from the Agency. As such, claim 5 is part of Complainant's overall claim that he was denied a reasonable accommodation, which culminated in his constructive discharge/termination. Therefore, our previous decision properly reversed the Agency's dismissal of claim 5.
The Agency further argues that its August 15, 2011, termination letter provided Complainant with MSPB regulations regarding his appeal rights. EEO regulations provide that an agency shall inform every employee who is the subject of an action that is appealable to the MSPB and who has either orally or in writing raised the issue of discrimination during the processing of the action of the right to file either a mixed-case complaint with the agency or to file a mixed-case appeal with the MSPB. 29 C.F.R. � 1614.302(b). The person shall be advised that he may not initially file both a mixed-case complaint and a mixed-case appeal on the same matter and that whichever is filed first shall be considered an election to proceed in that forum. Id.
In this case, the Agency's termination letter informed Complainant of his right to appeal his termination to the MSPB but did not reference his rights in the EEO forum. We find that the Agency's mere reference to the address of an MSPB website was insufficient to provide Complainant with notice of his election rights. The Agency contends that this case is analogous to the situation in Smith v. U.S. Postal Serv., EEOC Appeal No. 01982483 (July 1, 1999), and Cade v. U.S. Postal Serv., EEOC Appeal No. 01975292 (Feb. 6, 1998). In Cade and Smith, the Commission found that the Postal Service notified complainants of their duty to make an election when it issued termination and demotion decisions with attached "MSPB Rules and Regulations." However, in this case, Complainant's election rights were not attached to the Agency's termination letter and therefore not incorporated into the document. Moreover, by only advising Complainant that he could appeal his termination to the MPSB without mentioning the EEO complaint process, the Agency here led Complainant to the reasonable conclusion that his only redress was through an appeal to the MSPB. We find that our previous decision properly reversed the Agency's dismissal of Complainant's termination claim because the Agency failed to provide Complainant with adequate notification of his EEO rights; therefore, Complainant cannot be deemed to have made a valid and informed election to proceed in the MSPB forum.
Therefore, 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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120121604 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 below.
ORDER (E0610)
The Agency is ordered to process the remanded disability claims in accordance with 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 (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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
February 6, 2013
Date
2
0520120577
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120577