0120073719
01-26-2009
Eugene J. Ryan, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Eugene J. Ryan,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120073719
Agency No. HHSIHS02402007
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 26, 2007, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Complainant and his coworker1, both District Engineer Technicians at the
California Area Indian Health Service in Sacramento, California, alleged
that they were subjected to harassment, discrimination, and retaliation
by engineering staff. After each filed a complaint of discrimination,
they entered into a joint settlement agreement with the agency on March
7, 2003. The settlement agreement stated in relevant part:
All parties are attempting to remove current adverse action in
[complainant's] file. [A specific supervisor] will directly supervise
[complainant] and [his coworker]. [The supervisor] has also agreed
that they will be in charge of [their] own scattered projects.
[The supervisor] will be responsible for all aspects of the program
in the Redding District, input by Director only when necessary. When
technicians face a difficult problem with a contractors' attitude or
poor craftsmanship, [the supervisor] will intervene and be responsible
for effectively resolving the problem. PD's through GS-9 will [be]
clarified and finalized. IHS will provide all financial support which
allows technicians to qualify. Includes coursework, instruction, tuition
fees, and transportation and all necessary supplies. It is agreed that
if schooling causes overtime, according to IHS policy, no pay will be
compensated for overtime.
Soon after the settlement agreement was entered into, complainant was
not promoted to a GS-9 position because he was found to be not qualified,
which he alleged was in contrast to the terms of the settlement agreement.
Further, complainant and a coworker were told that they would have
to travel, resulting in them being under the supervision of different
engineers and not the supervisor agreed upon in the settlement agreement.
Additionally, complainant alleged that when complainant explained the
situation to a supervisor and stated that the actions were against the
settlement agreement, the supervisor told complainant and his coworker to
go ahead and refuse to do what they thought was against the settlement
agreement so the supervisor could discipline them and "put an end
to it once and for all." Complainant also alleged that a supervisor
trapped complainant in the corner of his office and pointed a finger in
complainant's face. Further, complainant alleged that he and a coworker
were told that they were "puppets" and they were wasting their time filing
EEO complaints because agency headquarters and the California Area Office
(CAO) had a way to "null and void" their settlement agreement.
On January 18, 2007, complainant and his coworker contacted the EEO
Director in writing to inform her that the settlement agreement was
breached. The record reveals that the EEO Director did not specifically
address their concerns, and instead referred them to an EEO Counselor.
In complaints dated June 20, 2007, complainant and a coworker each filed
separate formal complaints of discrimination, as directed by the EEO
Counselor. In his formal complaint, complainant alleged discrimination
on the basis of national origin (Turtle Mountain Chippewa), race (Native
American), religion (Christian), color (white), age (59), sex (male),
and in reprisal for prior protected EEO activity when:
1. on unspecified dates, the agency violated the settlement agreement
when it put him under the supervision of engineering staff;
2. on unspecified dates, the criteria for GS-9 positions were changed
so he could not be considered qualified, which violated the settlement
agreement, and that other individuals who were also not qualified were
selected for the position on a temporary basis, while he was not; and
3. since March 7, 2003, he has been harassed and retaliated against for
signing the settlement agreement.
On July 26, 2007, the agency dismissed complainant's complaint.
The agency found that complainant failed to state a claim of
discrimination because he did not indicate that he suffered direct or
personal deprivation which can be determined to be a harm or injury.
Complainant now appeals to the Commission.
As an initial matter, the record reveals that even though complainant's
complaint apparently referred to an alleged breach of the settlement
agreement, the agency dismissed his complaint for failure to state
a claim instead of conducting an inquiry of appellant's allegation of
breach. EEOC Regulation 29 C.F.R. �1614.504 provides that if complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within 30 days of when the complainant knew or should have
known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point at which processing ceased. The regulations further
provide that the agency shall resolve the matter and respond to
the complainant, in writing. If the agency has not responded to the
complainant, in writing, or if the complainant is not satisfied with the
agency's attempt to resolve the matter, the complainant may appeal to
the Commission for a determination as to whether the agency has complied
with the terms of the settlement agreement or final decision.
In the present case, the agency did not process appellant's settlement
breach allegations in accordance with 29 C.F.R. �1614.504, described
above. Instead, the agency improperly processed the settlement breach
allegations as a new complaint. Therefore, we find that the agency's
decision dismissing the complaint for failure to state a claim was
improper, and that the allegations of breach must be remanded back to
the agency for proper processing in accordance with the Order set forth
herein.
Further, the agency failed to address complainant's claims of harassment
and retaliation. Complainant alleged that a supervisor told him that
he and his coworker were "puppets" and they were wasting their time
filing EEO complaints because agency headquarters and the CAO had a way
to "null and void" their settlement agreement. Complainant alleged
that even though this particular supervisor was not involved in the
previous EEO complaint and the settlement agreement, the supervisor
made a point to let complainant know that he had first-hand knowledge
of the specifics of complainant's previous EEO activity. Additionally,
complainant alleged that he was harassed with threats of discipline for
following the terms of the settlement agreement, his supervisor broke the
locks on his file cabinet and went through all of his paperwork after he
entered into the settlement agreement, and he was taunted by management
and engineers for entering the settlement agreement. We find that this
alleged behavior could reasonably deter an individual from pursuing the
EEO process, and these acts would be severe or pervasive enough to state
a claim of retaliatory harassment. Therefore, the agency must process
these claims as a separate EEO complaint and conduct an investigation,
as set forth in the Order herein.
CONCLUSION
Accordingly, the agency's decision is REVERSED and the matter is REMANDED
to the agency for further processing in accordance with this decision
and the applicable regulations.
ORDER
1. Within 30 days of the date this decision becomes final, the agency
shall process the settlement breach allegation in accordance with 29
C.F.R. � 1614.504. Specifically, the agency shall conduct an investigation
and issue a written determination regarding complainant's allegation of
breach within 30 days of the date this decision becomes final. A copy
of the final decision must be submitted to the Compliance Officer,
as referenced herein.
2. Within 30 days of the date this decision becomes final, the agency
shall process complainant's retaliation and harassment claims as a
separate EEO complaint from complainant's breach of settlement agreement
claims. The agency shall investigate those claims in accordance 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 (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
January 26, 2009
Date
1 Complainant's coworker filed a separate appeal, docketed as Steve
P. Poitra v. Department of Health and Human Services, EEOC Appeal
No. 0120073725.
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0120073719
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073719