0120091377
05-28-2009
Patrick D. Cain, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Patrick D. Cain,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120091377
Agency No. 076300094
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 23, 2008, finding that
it was in compliance with the terms of the April 30, 2008 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
The agency will issue a check payable to complainant in the lump sum of
$2,000.00 in full compensation for all claims complainant has against
the agency, including any claim to attorney's fees and costs. This
payment will be made within 45 to 60 days of the full execution of
this Agreement.
The record reflects that on July 31, 2008, the agency's EEO Manager sent
the Chief of the Program Implementation Division, Office of Civil Rights,
a notification of compliance letter indicating that the agency was in full
compliance with the terms of the settlement agreement executed between
complainant and the agency. Specifically, it was stated that on June 9,
2008, the agency issued a payment to the Department of Treasury in the
amount of $2,000.00. Complainant was provided a copy of this letter.
By letter to the agency dated November 10, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency breached the settlement agreement when it issued
a check in the amount of $2,000.00 to the Department of Treasury rather
than directly to him as agreed upon. Notably, complainant admitted
that his breach claims were untimely filed, and his reasons were that
"I was in congestive heart failure and I am helping to take care of my
93 year old mother in home health care, and this is the reason that
I haven't had time." In its FAD, the agency dismissed complainant's
breach claims as untimely, pursuant to 29 C.F.R. � 1614.504(a).
In his appeal statement, complainant proffered the same reasons for his
untimely filing of breach claims. In its appeal response, the agency
asserts that:
it mailed the compliance letter to complainant on July 31, 2008.
Therefore, complainant knew or should have known of the alleged
non-compliance no later than August 6, 2008.1 As a result, complainant
was required to file his written allegation of noncompliance with the
agency no later than September 5, 2008. However, complainant did not
file his written allegation of noncompliance until November 10, 2008.
Complainant does not dispute the agency's findings that he knew of
the alleged noncompliance by August 6, 2008. He does not deny that he
failed to timely file his written allegation of noncompliance. Instead,
he argues that he could not timely file his allegation because he "was
in congestive heart failure" and "helping to take care of my 93 year old
mother in home health care." Complainant attaches two documents to his
appeal to support his claims. While both documents support the truth
of his assertions regarding the care of his now-deceased mother and the
existence of his own health conditions, these letters do not show that he
suffered such incapacitation that he was incompetent and unable to meet
the requisite time limit for his noncompliance allegation. His claim that
he was caring for his mother belies any claim that he was unable to handle
his affairs as a result of his congestive heart failure. Furthermore,
the letter from Mount Washington Family Medicine states that complainant's
"health conditions have been under good control" even given his care of
his mother. Because complainant cannot show that he was incapacitated
to such an extent that he could not capably handle his affairs or timely
file his written allegation of breach, no grounds exist for permitting
equitable tolling of the 30-day time limit. See Fontenotv. U.S.P.S.,
EEOC Request No. 05990216 (1999); see also Crear v. U.S.P.S., EEOC Appeal
No. 01921543 (1992). Therefore, complaint did not timely file his claim
of breach and the agency's dismissal was proper.
In accordance with 29 C.F.R. � 1614.504(a), allegations of noncompliance
of settlement agreements must be made in writing within 30 days of when
the complainant knew or should have known of the alleged noncompliance.
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual is
so incapacitated by his condition that he is unable to meet the regulatory
time limits. See Davis v. United States Postal Service, EEOC Request
No. 05980475 (August 6, 1998); Crear v. United States Postal Service,
EEOC Request No. 05920700 (October 29, 1992).
With respect to complainant's claim that the agency breached the provision
at issue, the record shows that he should have known, no later than
August 6, 2008, that the agency was not complying with this provision.
Yet he failed to lodge an allegation of noncompliance until November 10,
2008. Further, complainant has not shown that he was so incapacitated
by his condition that he was unable to meet the regulatory time limits.
Therefore, the agency's dismissal for complainant's failure to file his
breach allegations in a timely manner was proper.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
finding that complainant failed to file his breach claims in a timely
manner.
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 (S0408)
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 (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
May 28, 2009
__________________
Date
1 In its FAD, the agency credited complainant with the additional five
days for mail delivery.
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2
0120091377
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091377