0520080279
08-05-2008
Carol A. Ruleman, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Carol A. Ruleman,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520080279
Appeal No. 0120073633
Agency No. 2004-0517-2006100899
DENIAL
Both complainant and the agency timely requested reconsideration of
the decision in Carol A. Ruleman v. Department of Veterans Affairs,
EEOC Appeal No. 0120073633 (December 17, 2007). 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).
In our prior decision, we found that provisions (6) and (7) were not
breached,1 but that provision (8) was breached. Provision (8) obligated
the agency to "change the title of Complainant's current position from
Secretary to Program Support Assistant. Complainant understands and
agrees that the duties of her current position have not and will not
change as a result of this change in title." The agency reasoned that
audit findings showed that complainant's position should be downgraded,
and that a title change with complainant's current duties would violate
classification guidelines. The Commission noted, however, that the
record lacked any evidence reflecting that such title change violated
relevant guidelines. Further, the Commission was not persuaded by the
agency's reasoning, noting that provision (8) did not reference the other
provisions (which required a desk audit). Consequently, the Commission
ordered the agency to specifically perform provision (8) of the agreement,
and change complainant's title.
On January 16, 2008, complainant filed both a "Request for
Reconsideration" and a "Petition for Enforcement and Motion for
Sanctions." In her request, complainant contends that she is entitled to
attorney's fees with respect to the Commission's finding that provision
(8) was breached by the agency. See Carol Ruleman v. Department of
Veterans Affairs, EEOC Appeal No. 0120073633 (December 17, 2007).
The complainant reasons that she is the prevailing party, in that
she gained "a change in her position title, the prestige of a better
title and the benefit of using that title for advancement purposes."
She argues that the prior decision involved an "erroneous interpretation"
of law when it failed to award attorney's fees as part of a decision in
favor of her breach claim.
In complainant's petition for enforcement, she claims that the agency has
failed to comply with the Commission's order and change her title from
"Secretary" to "Program Support Assistant." According to complainant,
the change was to be made "within 15 calendar days, or January 2, 2008."
To date, complaint asserts, the agency has not even submitted the change
request to the Human Resources department for action.
In response, the agency also filed a "Request for Reconsideration."
The agency noted that while it disagreed with the Commission's finding
of breach, it initially decided to implement the decision instead of
requesting reconsideration. However when it instructed Human Resources
Management Services (HRMS) to make the title changes, HRMS employees
informed them that the change may violate the law and OPM regulations.
Specifically, the agency explained that OPM establishes official job
titles. According to the agency, OPM guidance states that an agency
"may designate the official title of positions in occupational services
for which OPM has not prescribed titles; i.e., those not specifically
covered by classification standards." However, in the instant matter,
OPM has prescribed both the titles "Program Support Assistant" and
"Secretary." The agency argues that it therefore is prevented from
making the change required by provision (8). The agency contends that
if the title "Secretary" is changed to "Program Support Assistant"
its electronic payroll system will reject the change, for failing to
conform to OPM regulations.
After reconsidering the previous decision and the entire record,
the Commission finds that the requests fail to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the requests. The decision in EEOC Appeal No. 0120073633, finding
breach of provision (8), remains the Commission's final decision.2 The
order in our prior decision, however, shall be modified to reflect the
mutual mistake made by the parties at the formation of the agreement.
While both parties believed that the agency would be able to change
complainant's title from "Secretary" to "Program Support Assistant,"
OPM regulations prevent the agency from taking such action.
We note that complainant has received some of the benefits promised in
the agreement, benefits which must be returned if complainant wishes to
reinstate her complaint for further processing. Therefore, the Commission
gives complainant the option of either returning the benefits conferred
and reinstating the complaint, or keeping the benefits conferred pursuant
to the agreement and abiding by the agreement's terms in the absence of
provision (8).
Accordingly, the decision in EEOC Appeal No. 0120071432 remains the
Commission's final decision. The matter is REMANDED to the agency in
accordance with the MODIFIED order below. There is no further right
of administrative appeal on the decision of the Commission on this
request.
ORDER
The agency is ORDERED to notify complainant of her option to return
to the status quo as it existed prior to signing the agreement, i.e.,
return all benefits received under the agreement, and have the complaint
reinstated, or to have the settlement agreement specifically implemented.
The agency must notify complainant of these options, in writing, within
fifteen (15) calendar days of the date this decision becomes final.
This notice must inform complainant that she has fifteen (15) days
from its receipt to return all benefits received under the agreement,
in order to have her complaint reinstated.
If complainant elects to return to the status quo ante and returns
all monies and benefits owed to the agency, then the agency shall
resume processing of the complaint from the point processing ceased.
The agency shall notify complainant in writing that the processing of
her complaint is being resumed within forty-five (45) calendar days of
the date this decision becomes final.
If complainant's elects not to return to the status quo ante, then the
agency shall notify complainant that the terms of the agreement, with
the exception of provision (8), shall stand.
A copy of the agency's notice to complainant regarding her options, as
well as a copy of either the correspondence reinstating the complaint for
processing or the correspondence notifying complainant that the terms
of the agreement will stand, must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 5, 2008
Date
1 Provision (6) required the agency to conduct a desk audit of
complainant's position. Similarly, provision (7) set forth the procedures
to be utilized during the audit and actions to take if complainant was
classified at a higher grade pay.
2 The Commission denies complainant's request for attorney's fees.
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0520080279
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0520080279