0120122390
11-05-2012
Danny Ray Campbell, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Danny Ray Campbell,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122390
Agency No. 2001-0673-2008103209
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated April 10, 2012, finding that it was not in breach of provision 3 of a May 25, 2011 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Medical Support Assistant at the Agency's facility in Tampa, Florida.
Believing that the Agency subjected him to an unlawful discrimination, Complainant contacted an EEO Counselor to initiate the EEO complaint process.
On May 25, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
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3. In consideration for the withdrawal identified above, the Agency agrees to apply to OPM for placement of Complainant into a GS-7 grade from his GS-6 grade in his current position medical support assistant with additional duties to justify such a grade in his current position medical support assistant with additional duties to justify such a grade increase at the James A. Haley Veterans' Hospital, located in Tampa, Florida. If OPM does not classify the job with additional duties as a GS-7 then the Complainant will be afforded the opportunity to choose from any other current open already classified GS-7 vacancies for which he qualifies (*such vacancies*) or such vacancies which become available over the next year following OPM's denial or choose to remain in his current position at the grade approved by OPM. Before OPM makes a decision Complainant can choose from any already classified GS-7 vacancy for which he is qualified which becomes available. This position will be converted to the hybrid Title 38 status as per VA Memorandum dated 6/1/2010. The new duties assigned will come from the surgery service department area. In the event an out of the ordinary duty is assigned the supervisory will ensure that complainant will have the opportunity to get training to acquire pertinent skills to perform the new duties. This appointment pay and future advancements will fall under the hybrid Title 38 status, and will follow those set guidelines. This is not a lifetime appointment and the Complainant may put in for other jobs and if the Agency has need of the Complainant in another position the agency retains its rights to assign work under the labor Statue 7106. This placement was based on the authority of title VII and 5 C.F.R. Section 250.101, based on the authority of the Administrative EEOC Judge to make such an award based on non-selection. This is to be accomplished within 30 days of the signing of this agreement.1
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By letter to the Agency dated October 7, 2011, Complainant alleged breach of provision 3. Specifically, Complainant alleged that the Agency did not place him in a GS-7 position. The record reflects that the Agency sent Complainant a letter dated November 18, 2011, stating that because a breach decision had not been rendered within 35 days from receipt, Complainant had the right to file an appeal with the Commission regarding his breach claim.
Subsequently, on December 21, 2011, the Agency issued a final decision finding that it had indeed breached provision 3. The Agency found that there was a mutual mistake regarding the procedures needed to reclassify Complainant's position from a Medical Support Assistant 0679, GS-6, to a GS-7 position. The Agency found further that OPM does not have the authority to reclassify the position. The Agency also stated that this process remains under the Agency's jurisdiction and that the Medical Center should have submitted his revised position description, with additional duties, to the appropriate human resources classification department for review. The Agency stated that "the Medical Support Assistant GS-0679 series has been identified for conversion to a Hybrid Title 38 position. However, this conversion has not been finalized and VA does not have qualification standards in place for the Hybrid Title 38, Medical Support Assistant, GS-0679 series. Therefore, it is impossible for [Complainant] to be placed into that position."
The Agency asserted that it had taken the following steps in an effort to specifically enforce provision 3 as follows:
We have advised the Medical Center that within 60 days of issuance of this breach decision, they should submit your current position description to VISN 8's, Consolidated Classification Units for review. As specified in the agreement, the revised position description should include additional duties to justify placing you into a GS-7 grade. If after completion of the classification review, it is determined that your position does not classify at the GS-7 level, in accordance with VA Handbook 5003/1, you may appeal the decision to the OHRM, or OPM. If the classification review is not in your favor, as specified in the agreement, the Medical Center should [afford] you the opportunity to choose from any other current open already classified GS-7 vacancies for which you qualify, or such vacancies which become available over the next year, or you may choose to remain in your current position. At this point, in order to exercise your right to be placed in a vacant GS-7 position, it is your responsibility to identify the position, and notify the Human Resources (HR) office that you wish to be placed in a vacant position. At that time, HR will review your qualifications to determine if you are qualified for the position. If HR determines you are qualified for the position, they should promote you to that position.
On appeal, we found that there was inadequate evidence in the record from which we could determine whether or not the Agency was in substantial compliance with provision 3. We noted that in its December 21, 2011 decision, the Agency had determined that it was unable to comply with provision 3 as drafted. For example, the Agency found that Complainant should first submit his revised position description to the VA instead of OPM, because OPM does not have authority over this type of action. In addition, the Agency found that it was unable to convert Complainant into a Hybrid Title 38 position because the conversion for Complainant's series had not been completed and qualification standards were not in place.
The Commission acknowledged that in its December 21, 2011 decision, the Agency set forth an alternative method in an attempt to comply with provision 3 as drafted. However, the Commission nevertheless found it unable to ascertain from the record then before it, as to whether the Agency could in fact have complied with provision 3 as drafted. The Commission remanded the case to the Agency for further development of the record. On remand, the Agency was ordered to supplement the record with affidavits and documentary evidence indicating whether the Agency was able to comply with provision 3 as drafted; and issue a new final decision. Campbell v. Department of Veterans Affairs, EEOC Appeal No. 0120120893 (May 16, 2012).
The record reflects that to date, the Agency has not yet supplemented the record with affidavits and documentary evidence clearly reflecting whether it is able to comply with provision 3 of the May 25, 2011 settlement agreement as drafted, in accordance with the Order in the Commission's May 16, 2012 decision.
The record reflects that during the relevant period, Complainant filed a VA Form titled "Breach of Settlement Agreement Allegation" dated March 27, 2012. Therein, Complainant again alleged breach of provision 3 of the agreement. Specifically, Complainant alleged that the Agency breached the agreement because the Medical Center was to reclassify Medical Support Assistant, 0679, GS-07 grade, not create a new Program Assistant position, GS-0344, GS-07. Complainant further alleged that the position duties listed in the Program Assistant position are duties that his supervisor and the Surgery Department Chief did not submit for consideration during the position audit.
Further, Complainant alleged that the Chief Human Resources Management Service breached the agreement by adding additional duties to his supervisor's revised position description. Finally, Complainant alleged that the agreement "states that the new duties assigned will come from the Surgery Service department area."
On April 10, 2012, the Agency issued a final decision, which is the subject of the instant appeal. Therein, the Agency determined that it was in compliance with provision 3. With respect to Complainant's allegation that additional duties assigned should come from the Surgery Service department, the Agency determined that there is no provision in the instant agreement specifying who would be responsible for adding additional duties to Complainant's position description in reclassify him from a GS-6 position to a GS-7 position. The Agency determined that it was appropriate for the Chief Human Resources Management Service to be involved in the classification process.
The Agency also addressed Complainant's allegation that while the Medical Center created a new Program Assistant, GS-07 position, it did not comply with provision 3 by reclassifying the position as a Medical Support Assistant, GS-7 position. The Agency determined that the Medical Center complied with provision 3. Specifically, the Agency stated that the Medical Center submitted a revised position description to the VISA 8 for review with additional duties to justify a grade increase. The Agency further stated that there is no provision in the agreement which guaranteed Complainant that the Medical Support Assistant, GS-7 position would be reclassified. Therefore, the Agency determined that it is in compliance of provision 3.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties.
Our previous decision ordered the Agency to supplement the record with affidavit and/or documentary evidence on whether the Agency is able to comply with provision 3 and issue a new decision. The Agency has not yet taken steps to supplement the record. We note that in its response to Complainant's appeal, the Agency acknowledged that it cannot comply with provision 3 as originally drafted because OPM does not have authority to classify Hybrid Title 38 positions. In contrast, Complainant asserted that because the Agency has not yet complied with the Commission's Order of May 16, 2012, "all decisions related to that matter are void."
Given the current posture of this case, we face the same indecision as confronted at the time of our decision of May 16, 2012. Specifically, we remain unable to expressly ascertain whether (a) the Agency could have complied with provision 3 as drafted, or (b) whether the Agency properly set forth an attempted alternative method to comply with provision 3. As we remain unable to ascertain whether the Agency complied with the instant agreement, we REVERSE the Agency's finding of no breach. The most efficient means of disposing of this matter is to REMAND it to the Agency for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days from the date this decision becomes final:
1. The Agency shall supplement the record with affidavit and/or documentary evidence (i.e. affidavits or documentary evidence from Agency management officials and/or OPM management officials) clearly reflecting whether the Agency is able to comply with provision 3 of the May 25, 2011 settlement agreement as drafted.
2. The Agency shall issue a new decision, with appeal rights to the Commission, regarding whether it is able to specifically implement provision 3 of the agreement as drafted.
A copy of the Agency's new decision must be sent to the Compliance Officer as referenced herein.
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 (M0610)
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 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 (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 (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
November 5, 2012
__________________
Date
1 The settlement agreement also provides for the Agency to pay Complainant a lump sum payment in the amount of $11,211.00 in lieu of back and front pay; and to pay Complainant's attorney in the amount of $23,458.41 in attorney's fees. These provisions are not at issue in the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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