0520120477
11-16-2012
Glenda B. Harris, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Glenda B. Harris,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 0520120477
Appeal No. 0120120987
Agency No. HHS-OS-0047-2010
DENIAL
The Agency timely requested reconsideration of the decision in Glenda B. Harris v. Department of Health and Human Services, EEOC Appeal No. 0120120987 (May 3, 2012). 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 the previous decision, the Commission found the Agency to be in breach of a settlement agreement that provided, in relevant part, that the Agency would, "[a]s soon as operationally practical, provide and add eighty (80) hours of annual leave to [Complainant's] existing accrued annual leave balance." We noted that the Agency at one point during the compliance period tendered to Complainant 80 hours of award leave, which Complainant rejected because of the restrictions on and lesser value of award leave as compared to annual leave. Complainant had, at that time, advised the Agency that she would accept 120 hours of award leave in lieu of the 80 hours of annual leave contemplated by the settlement agreement. The previous decision ordered the Agency to tender to Complainant either 80 hours of annual leave or a written option to reform the settlement agreement to provide that it would grant her 120 hours of award leave. We note that, on appeal, the Agency had submitted no argument on its behalf.
On reconsideration, the Agency for the first time1 explains that it is statutorily prohibited from increasing the amount of annual leave to which Complainant is entitled by virtue of her tenure as a federal employee, i.e., no more than four hours per pay period (a total of 104 hours) during the first three years of employment. The Agency notes that the only means to accomplish granting Complainant 80 hours of annual leave would be to wait until she has used 80 hours of annual leave, and then restore the 80 hours; as of the time of the appeal, Complainant annual leave usage did not approach 80 hours. The Agency argues that the clause "as soon as operationally practical" should provide the Agency the ability to wait until Complainant has expended 80 hours of annual leave, and then restore to her the 80 hours contemplated by the settlement agreement.
In response, Complainant requests that the Commission order the Agency to immediately tender to her 120 hours of award leave "so that the [A]gency cannot benefit from its own delay."
We remind the Agency that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.
Although Complainant requests immediate tender of 120 hours of award leave, it is possible that, by now, Complainant has used enough annual leave to allow the Agency to restore 80 hours of annual leave to her. If that is the case, then that is what the Agency must do to fulfill its obligations under the settlement agreement. However, if Complainant has not used enough annual leave to allow the Agency to restore 80 hours of annual leave to her, then the Agency is directed to tender to Complainant 120 hours of award leave.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120120987 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order of the Commission, set forth below.
ORDER
Within thirty (30) days of the date on which the Agency receives this decision, the Agency shall replace the 80 hours of award leave provided to Complainant under the terms of the settlement agreement with 80 hours of annual leave; in the alternative, the Agency shall tender to Complainant an additional 40 hours of award leave, for a total of 120 hours of award leave.
Proof of compliance with this order must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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.
COMPLAINANT'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 (Z0610)
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
November 16, 2012
Date
1 The Agency's representative states that, while the Agency's EEO and Compliance Operations Division was advised of Complainant's appeal, the Agency representative was not so advised, and therefore filed no brief on the Agency's behalf. We note that the failure of one office of the Agency to properly communicate with another does not afford the Agency the benefit of raising matters for the first time on reconsideration that should have been raised on appeal.
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0520120477
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120477