Carmelo L.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 16, 2016

0520160378 (E.E.O.C. Aug. 16, 2016)

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

Carmelo L.,1
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Request No. 0520160378

Appeal No. 0120151383

Hearing No. 430-2013-00227X

Agency No. DON-12-61414-03018

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120151383 (May 3, 2016). 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 claimed that the Agency breached the settlement agreement that the parties
entered into on September 17, 2014, when it did not pay him full back pay, interest, benefits
and overtime/bonuses from August 11, 2012 through the date of his reinstatement to Agency
employment on October 6, 2014. The relevant provision of the settlement agreement states
that the Agency would:

“Pay Complainant back pay, interest, benefits and overtime/bonuses commensurate
with his peers in accordance with the Back Pay Act and applicable regulations for the

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.
0520160378

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period from August 11, 2012 through the date of reinstatement pursuant to paragraph 1,
above. The Agency will submit the payment request to the Defense Finance and
Accounting Services (“DFAS”) within forty-five (45) days of the date Complainant
provides all information necessary to calculate the amount of back pay, but disclaims
any responsibility for the processing of the payment by DFAS thereafter…

Complainant informed the Agency that it had breached this provision of the settlement
agreement. The Agency did not issue a final decision within 35 days of Complainant’s breach
allegation. Thereafter, Complainant filed an appeal with the Commission. On appeal, the
Commission found that the Agency had not breached the settlement agreement. The
Commission stated that the Agency paid Complainant $36,909.94 which was $5,686.52 more
than Complainant was entitled to under the terms of the settlement agreement. The
Commission further stated that the sum paid is supported by the record.

In his request to reconsider, Complainant contends that the previous decision should be
reversed. Complainant argues that the Agency did not correctly calculate and pay him back
pay, interest, benefits and overtime/bonuses commensurate with his peers as provided by
provision three of the settlement agreement. Complainant argues that his back pay night
differential should be based on four hours per day rather than three hours per day.
Complainant claims that prior to his separation, he had earned one hour of overtime per day,
as did his peers. Complainant states that the Agency did not pay him any overtime which
otherwise would have been paid during his period of separation had he not been wrongfully
terminated. Complainant further contends that the Agency has not paid bonuses commensurate
with his peers which would otherwise have been paid during the period of separation.

In response, the Agency asserts that Complainant has reargued the facts from the prior appeal.
The Agency points out that Complainant’s request to reconsider relies primarily on his
expanded calculations of overtime and night differential/premium/holiday pay, which was
previously available when Complainant filed his appeal with the Commission. The Agency
maintains that Complainant has failed to demonstrate that the Commission’s previous decision
had a clearly erroneous interpretation of a matter of fact or law.

Complainant’s contentions in his request were considered in the previous decision. We
emphasize that a request for reconsideration is not a second appeal to the Commission. See
EEO MD-110, Ch. 9, § VII.A. 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. Complainant has not done so here.

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 it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120151383 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request.
0520160378

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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

August 16, 2016
Date