Jacinto Q.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

May 5, 2020

2020001197 (E.E.O.C. May. 5, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jacinto Q.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2020001197 Agency No. HHS-FDAORASW-081-19 DISMISSAL OF APPEAL Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 25, 2019, dismissing a formal 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. BACKGROUND During the period at issue, Complainant was employed by the Agency as a Consumer Safety Officer at the Agency’s Dallas Field Office in Dallas, Texas. On July 15, 2019, Complainant filed a formal complaint claiming that the Agency subjected him to discrimination based on national origin (Hispanic) and in reprisal for prior protected EEO activity when he discovered in 2019 that the Agency breached a provision of a settlement agreement he and the Agency entered in March 2001. The March 2001 settlement agreement stated, in pertinent part that: Provision 3: The Agency will remove from [Complainant’s] Official Personnel File (hereinafter referred to as “OPF”) the Official Standard 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020001197 2 Form (SF-50) effecting his removal on November 25, 2000, and the corresponding Official Standard Form (SF-52) dated November 25, 2000, requesting his removal from Federal service. In addition, the Agency will expunge from [Complainant’s] OPF the “Decision to Remove” [Complainant] from Federal service dated, November 13, 2000. Provision 4. The removal action will be substituted with a voluntary resignation. [Complainant’s] resignation will be effective September 29, 2000, which is the date on which the reassignment became effective. [Complainant] will be provided with a Standard Form-52, Request for Personnel Action. [Complainant] must indicate the reasons for his resignation on the SF-52 form. In order to continue receiving severance pay, [Complainant] must also state that “Due to personal considerations, I am unable to relocate to San Antonio, Texas.” The SF-52 will be dated September 29, 2000. The information contained in the SF-52 form will be used to prepare the Notification of Personnel Action or SF-50 to effectuate the resignation. The SF-50 will be dated September 29, 2000. [Complainant] will be provided with a copy of the revised SF-50 for inspection, and will notify the Agency of any concerns within 15-days of receipt of the form. In its September 25, 2019 decision, the Agency dismissed Complainant’s complaint on two procedural grounds. First, the Agency dismissed the complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2), finding that Complainant was notified in 2001 of the incorrect resignation code, but Complainant waited 18 years to initiate EEO Counselor contact in 2019 to allege breach of the March 2001 settlement agreement. The Agency also argued that Complainant’s complaint should be dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. On appeal, Complainant submits a copy of his SF-50 reflecting that his resignation was effective September 29, 2000. The SF-50 also reflects, in the remarks section, that Complainant resigned, “Due to personal considerations, I am unable to relocate to San Antonio, Texas.” However, the SF-50 includes code “312” and identifies the nature of the personnel action as “RESIGNATION ILTA” which Complainant argues is incorrect because it indicates that he resigned In Lieu of Impending Action. Complainant further argues that the personnel action should have been coded 317 - Voluntary Resignation as agreed to in the March 2001 settlement agreement. Complainant also submits a copy of a December 27, 2016 decision issued by United States District Court for the United States Circuit Court of Appeals - Federal Circuit (identified as Civil Action No. 16-2120) affirming a final order of the Merit System Protection Board (“MSPB”)2 2 The MSPB final order was issued on March 24, 2016 and is docketed DA-0752-01-0157-C-1. 2020001197 3 dismissing Complainant’s appeal as untimely regarding his claim that the Agency breached the same terms at issue in the instant settlement agreement. ANALYSIS AND FINDINGS As a preliminary matter, we note that the Agency improperly analyzed the instant complaint in terms of whether Complainant timely initiated EEO Counselor contact and whether the instant complaint stated a claim using the dismissal bases detailed in 29 C.F.R. § 1614.107(a). However, the instant matter is a breach claim and should only be analyzed under the procedures detailed in 29 C.F.R. § 1614.504(a). We further note that regulation 29 C.F.R. § 1614.504(a) requires a complainant who believes an agency has failed to comply with the terms of a settlement agreement to notify the agency's EEO director of the alleged noncompliance within 30 days of the date complainant knew or should have known of the breach. Here, the record reflects, as explained in the Federal Circuit December 27, 2016 decision, that Complainant received the SF-50 with the incorrect code in 2001 and therefore had notice of the error, but he did not allege breach of the March 2001 settlement agreement until October 2014. We further find that Complainant’s clam of breach is not properly before the Commission on appeal. Our review of the Federal Circuit’s December 27, 2016 decision, civil action No. 16- 2120, reveals that it encompasses the same matters. The regulation found at 29 C.F.R. § 1614.409 provides that the filing of a civil action “shall terminate Commission processing of the appeal.” Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513 (Oct. 19, 1989); Kotwitz v. U.S. Postal Service, EEOC Request No. 05880114 (Oct. 25, 1988). Therefore, Complainant’s appeal in this matter is DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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: 2020001197 4 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2020001197 5 The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 5, 2020 Date