01a53729r
10-14-2005
Louie Solano, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security (U.S. Customs and Border Protection), Agency . Appeal No. 01A53729 Agency No. 05-0224
Louie Solano v. Department of Homeland Security (U.S. Customs and Border
Protection)
01A53729
October 14, 2005
.
Louie Solano,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
(U.S. Customs and Border Protection),
Agency .
Appeal No. 01A53729
Agency No. 05-0224
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 29, 2005, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
The record reveals that in a prior complaint (Agency No. I-02-W065) filed
on March 22, 2002, complainant alleged that the agency discriminated
against him based upon age, disability, and in reprisal for prior EEO
activity when in December 2001 and January 2002, it failed to accommodate
his medical impairment in his former position as a GS-11 Immigration
Inspector and downgraded him to the position of a GS-6 Inspections
Assistant. In August 2003, complainant and the agency entered into a
settlement agreement which provided, in pertinent part, the following:
That upon successful completion of the requirements listed in
subparagraphs A - D, the complainant will be reinstated as a GS-11,
Step 6 Immigration Inspector in the Department of Homeland Security,
U.S. Customs and Border Protection. Such reinstatement will be as soon
as possible but not later than 60 days after the successful completion
of all requirements for the Immigration Inspector position.
4A. Within 30 but no later than 90 days of the signing of this agreement,
the Complainant must provide the government a medical certification
from his physicians saying that he is capable of carrying out the
duties of an Immigration Inspector as described in the Inspector's
Position Description effective August 11, 2002. (See attachment).
The medical certification should be comprehensive in that it states none
of the former medical problems his physicians have cited, such as his
problem with balance, steroid myopathy, bone weakness, encephalitis,
obesity, ambulatory problems, impaired hearing, inability to stoop or
bend repeatedly, or his likelihood of suffering from a hernia if he
lifts over 15 pounds, now prevent him from carrying out the full range
of duties of an Inspector at Calexico. The Complainant must present
medical certification(s) clearing him to return to full duty without
restrictions.
4B. When the Complainant supplies medical certification that he is
capable of carrying out the full range of duties as an Inspector, the
government will arrange for him to undergo up to 40 hours of training
by Calexico firearms instructors in preparation to qualify with the
type of weapon Inspectors now carry. The complainant will be scheduled
for the next available remedial training slot within 10 business days
of presentation of his medical certification. He must qualify on the
Inspectors' current course of fire with a government-issued weapon by
the end of the training or sooner.
In August 2003, complainant presented the agency with updated medical
documentation that cleared him to return to his position as an Immigration
Inspector, as long as he worked a day shift that did not exceed eight
hours per day. On November 5, 2003, the agency refused to reassign
complainant, contending that the documentation presented by complainant
failed to fully clear him to perform the duties of Immigration Inspector
position because the documentation did not reflect that complainant
had been cleared to assume the position �without restrictions.� In
March 2004, complainant presented the agency with supplemental medical
documentation that again stated that he could perform all the duties
identified in the Immigration Inspector job description but that he should
not work more than eight hours per day and only work during the day.
Complainant requested that the agency reinstate him to the position
of Immigration Inspector. In a complaint filed September 27, 2004,
complainant alleged that the agency discriminated against him on the
bases of age, disability, and in reprisal for prior EEO activity when
it failed to accommodate his disability.
Complainant contends that the agency failed to respond to his request
and documentation, and in a letter dated June 15, 2004, alleged that the
agency breached the terms of the settlement agreement when it failed to
engage in the interactive process and offer a reasonable accommodation
to enable complainant to be reassigned to full duty as an Immigration
Inspector. The agency processed complainant's claim as a new complaint,
and in a decision dated March 29, 2005, dismissed complainant's claim for
stating the same claim contained in prior complaint Agency No. I-02-W065
and addressed in the settlement agreement, pursuant to 29 C.F.R. �
1614.107(a)(1).
On appeal, complainant argues that the agency improperly dismissed his
complaint. Complainant first contends that the August 2003 settlement
agreement should be voided because it impermissibly purports to absolve
the agency of any obligation to provide complainant with a reasonable
accommodation under the Rehabilitation Act. He further contends that
the agreement should be voided because it failed to comport with the
waiver requirements for all age discrimination claims. Complainant also
contends that the acts alleged in the instant September 2004 complaint
create separate and distinct causes of action from those settled by his
August 21, 20003, and therefore do not state the same claim raised in
his previous complaint.
Settlement Agreement
Although the agency did not process complainant's claim as a breach claim
under 29 C.F.R. � 1614.504, complainant's claim could be construed as a
settlement breach claim. The Commission notes that complainant's settled
complaint is based in part on his claim of age discrimination. The Older
Workers' Benefit Protection Act (OWBPA) amended the Age Discrimination
in Employment Act (ADEA) effective October 16, 1990, and provides the
minimum requirements for waiver of ADEA claims. Juhola v. Department of
the Army, EEOC Appeal No. 01934032 (June 30, 1994). To meet the standards
of the OWBPA, a waiver 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 waiver; (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. Id. (citing 29 U.S.C. � 626(f)(2)).
After a review of the record, the Commission finds that the agency
failed to comply with the requirements of the OWBPA. Specifically, the
settlement agreement does not state that complainant is waiving his rights
to claims under the ADEA, the agency did not advise complainant in writing
to consult with an attorney prior to executing the settlement agreement,
and the record does not support a finding that complainant was given a
reasonable period of time in which to consider the settlement agreement.
The agency argues that to the extent the Commission may void the agreement
for not complying with the OWBPA, we should limit the reinstatement of
the underlying complaint to ADEA claims. However, we have recently held
that reinstatement of the entire complaint is proper when the agency
fails to comply with the waiver requirements of the OWCP even when
age is not the only basis of discrimination alleged in the complaint.
Valencia v. Department of Defense, EEOC Appeal No. 01A40703 (August 10,
2004).<0> Thus, the Commission finds that complainant's decision to
enter into the settlement agreement was neither knowing nor voluntary.
Therefore, the Commission determines that the settlement agreement is void
and reinstates complainant's underlying complaint, Agency No. I-02-W065.
Accommodation Claim
The agency determined that complainant's instant complaint stated the
same matter contained in his previous complaint, Agency No. I-02-W065.
However, we conclude that the instant complaint concerns complainant's
claim that he was denied a request for a reasonable accommodation in
March 2004 and August 2004, which involves distinct documentation and
facts from the much earlier 2001/2002 accommodation denial that is the
subject matter of the previously filed complaint. Consequently, we find
that the agency improperly dismissed complainant's complaint.
Accordingly, the Commission REVERSES the agency's final decision and
REMANDS complainant's complaints for consolidation and further processing
in accordance with the order herein.
ORDER
The agency is ORDERED to reinstate and consolidate complainant's EEO
complaints, Agency Nos. I-02-W065 and 05-0224, at the point at which
processing ceased. The agency shall acknowledge to complainant that it
has resumed processing of complainant's complaints within thirty (30)
calendar days of the date that this decision becomes final.
A copy of the agency's letter of acknowledgment notifying complainant
of the reinstatement and consolidation of his complaints must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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
(R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________ __October 14, 2005__
Carlton M. Hadden, Director Date
Office of Federal Operations
0 1We note that the agency cites Remedios v. Department of the Army, EEOC
Appeal No. 01A12336 (June 27, 2002) in its appeal brief as supporting
its contention that the settlement agreement should not be voided for
non-ADEA claims. However, in Remedios, the complainant only alleged
discrimination on the bases of race and sex, without any mention of
age discrimination. In this case, complainant's underlying complaint
alleged age discrimination, implicating the waiver provisions of the
OWBPA for all matters contained in his complaint.