0420170029
12-27-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Victor S,1
Petitioner,
v.
Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.
Petition No. 0420170029
Appeal No. 0120171259
Agency No. HUD001262013
DECISION ON A PETITION FOR CLARIFICATION
On September 19, 2017, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for clarification of an Order set forth in EEOC Appeal No. 0120171259 (August 10, 2017). The Commission accepts this petition for clarification pursuant to 29 C.F.R. � 1614.503.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Financial Systems Analyst at an Agency facility in Washington, DC.
Petitioner filed an EEO complaint that progressed to the hearing stage of the administrative process. On August 15, 2014, Petitioner and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(4):2 The Department agrees that within 45 days of the execution of this Settlement Agreement (unless otherwise stated below) that it will:
a. Delete language in the March 10, 2014 Notice of Placement on Administrative Leave that refers to threatening and/or disturbing behavior;3
b. Complete the narrative sections of Standard Forms 3112B and 311D with mutually-agreed upon language and to provide a copy of the completed forms to the Petitioner within 30 days of submitting the forms to OPM;4
c. Provide the Petitioner only neutral employment references consistent with 5 C.F.R. Part 293.311;
d. Leave Petitioner on administrative leave for total of 45 days following the execution of this Agreement or the acceptance of his disability claim by the Office of Personnel Management (OPM), whichever comes first;
e. Pay Petitioner a lump sum of $5,000.00.
By letter to the Agency dated February 25, 2015, Petitioner alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. In a final decision dated March 31, 2015, the Agency concluded that it complied with the August 15, 2014 agreement. In a letter dated April 5, 2016, Petitioner alleged that the Agency breached the settlement agreement further by using an unsubstantiated claim of threatening behavior to justify a request for additional medical information, to deactivate Petitioner's agency personal identity verification badge, to place Petitioner on an additional administrative leave period, and to remove Petitioner from employment.5 Petitioner stated that the Agency's actions violated paragraphs (4)(a) and (4)(d) of the settlement agreement.
On January 4, 2017, Petitioner alleged breach stating the Agency failed to expunge any reference to the alleged March 2014 threatening behavior. In a letter dated January 25, 2017, the Agency concluded that it remained in compliance with the August 15, 2014 agreement. Petitioner filed an appeal with this Commission, which was docketed as EEOC Appeal No. 0120171259.
On August 10, 2017, in Appeal No. 0120171259, the Commission found the Agency breached paragraphs (4)(a) and (4)(d). As to paragraph (4)(a) and (4)(d), on November 2, 2015 (about sixteen months after the settlement agreement), citing Petitioner's March 2014 threatening conduct, the Agency requested medical documentation, continued to deactivate Petitioner's badge and withhold Agency building access, continued to keep Petitioner on administrative leave, and terminated Petitioner's employment. The Agency specifically refers to Petitioner's threatening email in the November 2 memorandum. The Commission found that if the Agency referenced said misconduct in subsequent correspondence, such information had to still be in the original March 2014 documentation. Also, in its November 2 memorandum, the Agency extended Petitioner's administrative leave beyond the 45-day total provided in paragraph (4)(d). The Commission found the Agency failed to comply with the specific obligations imposed by (4)(a) and (4)(d) and remanded the matter to the Agency to specifically implement provisions (4)(a) and (4)(d) in accordance with, in pertinent part, the Order below.
The Agency is hereby ORDERED in accordance with 29 C.F.R. � 1614.504(c), to specifically implement the August 15, 2014 settlement agreement, in particular paragraphs (4)(a) and (4)(d). The Agency must ensure references to threatening and/or disruptive behavior are removed from the March 10, 2014 Notice of Placement on Administrative Leave and remove Petitioner's placement on administrative leave beyond a total of 45 days following the execution of the settlement agreement or acceptance of Petitioner's disability claim, whichever occurs first.
The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620170688 on August 14, 2017. On September 19, 2017, the Commission docketed the instant petition for clarification at issue from the Agency. The Agency sought to confirm removal of the "threatening behavior" language in the March 10, 2014 letter, stating the letter does not contain said language. The Agency asked if it should focus solely on the language in the November 2, 2015 letter. Also, the Agency sought clarification on removing Petitioner from administrative leave past 45 days because to do so would place Petitioner in a leave without pay (LWOP) status. Conversion of administrative leave to LWOP after Petitioner was paid administrative leave would put Petitioner in an indebted status.
ANALYSIS AND FINDINGS
The Office of Federal Operations may, on its own motion or in response to a petition for enforcement or in connection with a timely request for reconsideration, issue a clarification of a prior decision. 29 C.F.R. � 1614.503(c). A clarification cannot change the result of a prior decision or enlarge or diminish the relief ordered, but may further explain the meaning and intent of the prior decision. Id.
As to (4)(a), our concern is that information the Agency agreed to remove from records (language that refers to threatening behavior by Petitioner toward his supervisor in March 2014) was its justification for subsequent adverse actions. The November 2, 2015 letter was an example of a subsequent adverse action taken based on "threatening" behavior cited in the March 10, 2014 letter. Subsequent adverse actions should not be taken based on or citing "threatening" behavior from the March 10, 2014 letter. Based on the settlement agreement, that language should no longer exist.
Regarding (4)(d), because a change from administrative leave to LWOP could negatively impact Petitioner, the Agency should contact Petitioner and ask how he would like the Agency to handle his administrative leave beyond a total of 45 days following execution of the August 15, 2014 settlement agreement or the acceptance of his disability claim (whichever came first).
CONCLUSION
For the reasons stated herein, the Commission GRANTS the Agency's Petition for Clarification and ORDERS the Agency to comply with the Order below, which is a clarification of the Order in EEOC Appeal No. 0120171259.
ORDER
The Agency is ORDERED to take the remedial actions below.
(1) The Agency must ensure references to threatening and/or disruptive behavior are removed from the March 10, 2014 Notice of Placement on Administrative Leave and, inherently, that means such references should not be the basis or cite for subsequent adverse actions against Petitioner.
(2) The Agency shall, no later than sixty (60) calendar days after the date this decision becomes final, provide Petitioner written notice containing detailed information on how the conversion of the administrative leave utilized beyond a total of 45 days following the execution of the settlement agreement or acceptance of Petitioner's disability claim (whichever occurred first) to leave without pay would impact Petitioner. The Agency should allow Petitioner forty-five (45) calendar days of receipt of said information to provide a decision on whether he would like the administrative leave to remain in place or for the Agency to convert said administrative leave to leave without pay.
The Agency is directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Petitioner. If the Agency does not comply with the Commission's order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Petitioner 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 clarification. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Petitioner 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 Petitioner files a civil action, the administrative processing of the complaint, including any petition for clarification, will be terminated. See 29 C.F.R. � 1614.409.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (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. 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 Petitioner'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
December 27, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The provision is re-named herein for ease of reference.
3 The Agency provided a revised March 10 memorandum replacing "threatening behavior to your supervisor" with the language "your written and oral communications with your supervisor."
4 The Agency stated that it allowed for an abeyance of discipline for Petitioner's March 2014 misconduct in exchange for him applying for disability retirement.
5 The record contains a December 19, 2016 Removal for "Unacceptable Conduct" effective December 30, 2016.
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