Adam D.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 3, 2018

0520180385 (E.E.O.C. Oct. 3, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Adam D.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Request No. 0520180385

Appeal No. 0120161695

Agency No. ARJACKSON15JUL02779

DECISION ON REQUEST FOR RECONSIDERATION

Both Complainant and the Agency requested that the Equal Employment Opportunity
Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120161695
(April 24, 2018). EEOC Regulations provide that the Commission may, in its discretion, grant a
request to reconsider any previous Commission decision issued pursuant to 29 C.F.R.
§1614.405(a), 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(c).

Previously, Complainant and the Agency entered into a settlement agreement resolving
Complainant’s EEO complaint. The settlement agreement, in pertinent part, provided:

…Agency Case No.: ARJACKSON15JUL02779

This agreement arises out of the complaint of alleged discrimination initiated on
September 8, 2015, alleging discrimination based on sex (male) and reprisal (based on
current EEO activity) ….

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.
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3. The Army agrees to:

c. Pay Complainant a lump sum in the amount of $8,682.76. The Army will
complete all required paperwork of the lump sum within 45 days of the
effective state of his resignation.

d. Compensate Complainant for his accrued annual leave hours in the
amount of $2,378.34, which will be paid separately from the lump sum
payment….

j. Not issue a proposed removal action for the alleged misconduct of the
Complainant that allegedly occurred in October and November 2015,
which relates to or will arise out of the issues related to this EEO case.

4. The Complainant agrees to…

c. By the close of business on 18 December 2015, submit a written
resignation to become effective on 31 January 2016…for medical
reasons….

5. ….The Agency’s processing of the…agreed actions in paragraph 3 will be
completed within 45 days of the effective date of Complainant’s resignation.
Both parties acknowledge that after the Agency completes its portion of the
processing of the lump sum and accrued annual leave payments to Complainant,
the final processing work will be completed by DFAS [Defense Finance and
Accounting Service], a separate defense Agency that is not a party to this
agreement….

7. Complainant has alleged sex and reprisal discrimination, in this matter. Pursuant
to the provisions of Title VII of the Civil Rights Act of 1964, as amended,
concerning the issues, claims or facts contained in the subject
precomplaint/complaint….

e. That she/he was given a reasonable period of time within which to
consider this Agreement before signing it;

f. That she/he was advised to consult with her/his attorney before executing
the Agreement;

g. That she/he has been offered 7 days to revoke this Agreement from the
date of signature. However, Complainant agrees to waive the 7 day
revocation period….

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The above items have been explained to the Complainant. By signing today, the
Complainant is acknowledging that he has consulted whoever he has deemed
necessary and is agreeing to all the terms and agreements as set forth.

8. Complainant’s signature on this agreement constitutes a full and complete
settlement of any and all issues and claims arising from the circumstances of the
aforementioned EEO precomplaint/complaint.

Subsequently, Complainant alleged the Agency breached the settlement agreement. The Agency
issued a final decision finding it had not breached the settlement agreement. Complainant
appealed the Agency’s final decision to the Commission. In our prior decision, the Commission
determined Complainant was not coerced into signing the settlement agreement and that the
settlement agreement was valid on the closure of his Title VII claims.

However, the Commission also found that Complainant’s formal complaint included claims of
discrimination based on age and in reprisal for prior protected activity under the ADEA. We
noted that under the Older Workers’ Benefit Protection Act (OWBPA), which amended the
ADEA effective October 16, 1990, Complainant’s waiver of his ADEA rights was not
considered knowing or voluntary because the settlement agreement (waiver) did not specifically
refer to rights or claims under the ADEA. As Complainant requested his complaint be
reinstated, his ADEA claims were reinstated, but not his Title VII claims. The Commission
noted that if Complainant eventually prevails on his claims, the Agency may seek to reduce his
award by the benefits he received under the settlement agreement.

Based on the record at the time of the appeal, the Commission found it was unable to determine
if the Agency complied with the payment portion of the settlement agreement.

After reviewing the previous decision and the entire record, the Commission finds that the
requests fail to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the requests. The decision in EEOC Appeal No. 0120161695 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

ORDER
Within 30 calendar days of the date this decision is issued, the Agency shall issue a letter to
Complainant notifying him that the ADEA claims in his complaint are reinstated from the point
processing ceased, i.e., resume the EEO investigation. If DFAS or the Agency has not already
made payments to Complainant for both his lump sum of $8,682.76 and the monetary value of
his accrued annual leave, the above letter shall also notify Complainant that his Title VII claims
are reinstated. If both referenced payments were made to Complainant prior to the date of this
decision, his Title VII claims will not be reinstated but will be considered fully resolved through
settlement.
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The Agency must submit evidence of compliance as referenced below. The evidence shall
include the above letter to Complainant, which must specify whether his Title VII and ADEA
claims have been reinstated, or just his ADEA claims. If the Agency does not reinstate the Title
VII claims, evidence of compliance must also include documentation that payments to
Complainant for his lump sum of $8,682.76 and monetary value of his accrued annual leave
were made prior to the date of this decision.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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 (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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.
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“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 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

October 3, 2018
Date