Arthur F., Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 1, 2016

0520160035 (E.E.O.C. Mar. 1, 2016)

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

Arthur F.,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520160035

Appeal No. 0120151891

Agency No. 200J-0330-2013100458

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120151891
(Oct. 2, 2015). 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(c).

Complainant and the Agency entered into a settlement agreement resolving an EEO matter. The
settlement agreement provided, in pertinent part, that: Complainant’s removal would be changed
to reflect a voluntary resignation; and the Agency was to remove from any documents
referencing negative performance or conduct from Complainant's Official Personnel Folder
(OPF). In addition, the parties noted that they agreed that the agreement complied with the Age
Discrimination in Employment Act (ADEA) and Complainant was explicitly advised in the
agreement about his waiver of his age discrimination claims. More specifically, Complainant
was advised that he had seven days from the date that all parties had signed the agreement to
revoke the agreement.

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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On February 14, 2014, 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 when the Agency removed documents from his OPF, it was left with
large gaps of missing important documentation which would be “extremely negative for his
federal employment pursuits.” Complainant asserted that the Agency used some negative
comments when they changed his OPF. Further, Complainant wanted the Agency to leave parts
of some documents in his OPF. Additionally, Complainant wanted the notation “Employee
resigned during trial period” to be changed to “Employee resigned.” Finally, Complainant
asserted he did not receive all the proceeds from his sick and annual leave balances.

The Agency subsequently issued a final decision finding that it had not breached the settlement
agreement. The Agency stated that it had paid the money as instructed, removed the
documentation from the OPF, and provided documentation showing that Complainant’s sick and
unpaid annual leave were applied as set forth in the agreement. The Agency noted the agreement
specified that it would remove documents from the OPF, not change the documents.
Complainant appealed asserting that the settlement agreement was vague regarding its use of the
phrase “negative performance.” In addition, Complainant argued that he revoked the settlement
agreement by fax dated April 29, 2014. As such, Complainant requested that the settlement
agreement be voided.

In Arthur F. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120151891 (Oct. 2, 2015), the
Commission affirmed the Agency’s finding of no breach. In so finding, the Commission noted
that Complainant was represented by an attorney during the signing of the agreement, was
provided a reasonable period of time to consider the agreement, and was provided seven days to
revoke it after all signatures were obtained. Thus, the Commission found that Complainant
knowingly and voluntarily waived his ADEA claim. As Complainant waited until well beyond
the seven-day period to attempt to revoke the agreement, the Commission found that the
agreement remained in effect.

Next, the Commission determined that the Agency had complied with the agreement. Most
notably, the Commission found that the Agency demonstrated that it had removed the documents
referenced in the agreement. The Commission stressed that if Complainant wanted only portions
of some documents removed or specific language used with reference to his resignation, he
should have specified such in the agreement. The Commission noted that Complainant was
represented by an attorney. In addition, the Agency provided Complainant with a copy of the
OPF to ensure that the negative references were in fact removed. Complainant did not assert that
negative references remained in the OPF. Accordingly, the Commission found that the Agency
had not breached the settlement agreement.

ARGUMENTS ON RECONSIDERATION

In his request for reconsideration, Complainant reiterates numerous arguments previously made
on appeal and contends that the Commission clearly erred in its interpretation of facts and law.
First, Complainant argues that he did not receive a copy of the settlement agreement until April

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22, 2014; therefore, his April 29, 2014 fax revoking the agreement was timely. While
Complainant acknowledges that the Agency provided evidence that it previously sent the
settlement agreement to his former attorney on November 25, 2013, Complainant claims that the
Commission failed to analyze the facts as to its actual receipt. Further, Complainant argues that
the Agency misrepresented facts to him about the settlement agreement after it was signed. In
addition, Complainant again challenges the settlement agreement’s use of the phrase “negative
references” as vague. Finally, Complainant again notes that his attorney made a mistake
regarding informing the Agency as to what he wanted included in the OPF. Accordingly,
Complainant requests that the Commission grant his request for reconsideration and find that the
settlement agreement is void and unenforceable.

ANALYSIS

The Commission emphasizes 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) (Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agric., EEOC Request No.
0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate
that the appellate decision involved a clearly erroneous interpretation of material fact or law, or
will have a substantial impact on the policies, practices, or operations of the Agency. The
Commission finds that Complainant's request does not meet the regulatory criteria of 29 C.F.R. §
1614.405(c), in that, the request does not identify a clearly erroneous interpretation of material
fact or law, nor does it show that the underlying decision will have a substantial impact on the
policies, practices, or operations of the Agency.

In so finding, the Commission again notes that Complainant was represented by counsel while
negotiating and signing the settlement agreement. Complainant argued that his attorney failed to
include documents he wanted included in his OPF. In addition, Complainant challenged the
Agency’s removal of negative information from his OPF and the effects of that removal. The
Commission’s previous decision found that Complainant had the opportunity to read over the
agreement prior to signing it and to consult with his attorney. The Commission reemphasizes
that if Complainant wanted more specific language used with reference to what was removed or
included in his OPF, he should have stated such in the agreement prior to signing it. The
Commission is not persuaded that Complainant’s attorney’s mistake regarding the terms of the
settlement agreement, or Complainant’s wishes to insert specific terms that were not previously
negotiated, lead to the conclusion that the Agency breached the contract.

Likewise, the Commission finds Complainant’s argument that he timely revoked the agreement
equally unavailing. The record reveals that the agreement was executed by management on
November 25, 2013, and the Agency’s attorney emailed Complainant’s attorney a copy of the
executed agreement. Even assuming, for the sake of argument, that Complainant’s attorney did
not receive the November 25, 2013 email containing the executed copy of the settlement
agreement, the record shows that Complainant was aware that the Agency had taken steps to
comply with the settlement agreement no later than January 17, 2014. Consequently, the

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Commission is unconvinced that Complainant’s attempt to revoke the agreement almost five
months after the expiration of the seven-day revocation period was timely.

CONCLUSION

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(c), and Complainant’s request is
DENIED. The decision in EEOC Appeal No. 0120151891 remains the Commission's decision.
There is no further right of administrative appeal on the decision of the Commission on this
request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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

March 1, 2016
Date