Colene R.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 12, 2018

0520180405 (E.E.O.C. Oct. 12, 2018)

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

Colene R.,1
Complainant,

v.

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

Request No. 0520180405

Appeal No. 0120180763

Agency No. ARBLISS17APR01429

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180763 (Apr. 11, 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).

In her underlying complaint, Complainant claimed that she was subjected to ongoing harassment
and discriminated against on the bases of her race (Asian) and national origin (Vietnamese) when:

1. On or about February 1, 2017 through March 27, 2017, the Major and the Colonel made
repeated false statements that Complainant was not qualified for the position of Clinical
Pharmacist, GS-12, and that she lacked the proper credentials to perform the duties of
the job.

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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2. On March 1, 2017, the Major informed Complainant that she would be removed from
Federal service.

3. On March 27, 2017, the Major ignored Complainant’s request for clarification on why
the Agency asserts that she was not properly credentialed for the position of a GS-12
Clinical Pharmacist.

4. On March 27, 2017, when Complainant was informed by the Major that the Colonel
made the statement “why is she still here?” in reference to her continued employment
with the Agency.

5. On March 27, 2017, the Major informed Complainant that he was directed by the
Colonel to terminate her or force her to resign.

On June 23, 2017, the parties entered into a settlement agreement which stated in relevant part:

3. In exchange for the promises of [Complainant] contained in this agreement, the Agency agrees
to take the following action:

a. To provide [Complainant] training through a Focused Provider Practice Evaluation
(FPPE) Plan not to exceed 180 days…

The agreement provided that Complainant agreed to the following in part:

b. At the conclusion of her FPPE, [Complainant] agrees to provide two favorable letters
of reference that comply with Army Regulation 40-68, Clinical Quality Management,
section 8-7), to [the Colonel], or the individual occupying the position of Deputy
Commander for Patient Support. At least one of the two favorable letters of reference
must come from an individual who supervised the training of [Complainant] during her
FPPE. Within fourteen (14) calendar days upon receipt of all required documentation,
the Deputy Commander for Patient Support will endorse and submit [Complainant’s]
Credentialing Package for approval. Once [Complainant’s] Credentialing Package is
approved, she will immediately be placed in her position as a Clinical Pharmacist, GS-
12, at the Interdisciplinary Pain Management Clinic, WBAMC.

c. If [Complainant] is unable to provide two favorable letters of reference that comply
with Army Regulation 40-68, Clinical Quality Management, section 8-7), as described
in paragraph 8-7(1)(d), she agrees to return to a GS-11 pharmacist position at her
previous GS-11 grade and step.

The Agency subsequently informed Complainant that it was unable to provide the FPPE training.
The Agency stated that when the settlement agreement was negotiated, its representatives were
unaware that Complainant first needed to be granted privileges prior to placement on a FPPE. The
Agency explained that when Complainant’s credentials file was presented to the Credentials
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Committee for a vote on granting her the privileges needed for placement on the FPPE, the
Committee decided it could not do so due to the absence of two letters of reference/peer
recommendation concerning her skill and ability as a clinical pharmacist. The Agency determined
that to do so would violate Agency policies and place the Clinic’s accreditation at risk.

Complainant subsequently informed the Agency that it had breached the agreement and requested
specific implementation of the terms of the agreement by way of either placement in FPPE or
returning her immediately to her position of Clinical Pharmacist, GS-12, at WBAMC.

In its final decision, the Agency determined that the settlement agreement was void due to mutual
mistake. The Agency stated that due to Complainant’s lack of experience in a clinical setting,
Complainant was unable to provide the Credentials Committee with two letters of
recommendation, and therefore she could not be placed in FPPE. The Agency decided that absent
the required FPPE training, Complainant could not be reinstated as a GS-12 Clinical Pharmacist.

In our previous decision, the Commission reversed the Agency’s final decision and found that the
Agency breached provision 3.a. of the agreement. We stated that the Agency failed to meet its
burden in establishing mutual mistake. We noted that the Agency failed to show which portion of
the relevant regulation supports its assertion that compliance is impossible. Further, we stated that
if the Agency intended the parties to be bound by this regulation, it should have included a
reference to it in the settlement language. We noted that any mistake in this matter was made by
the Agency as the Agency counsel and Deputy Commander for Patient Support, who negotiated
and executed the agreement on behalf of the Agency, were unaware of the alleged requirements
for FPPE participation.

In its request to reconsider, the Agency contends that our previous decision involved a clearly
erroneous interpretation of material fact or law. The Agency states that FPPE training is only for
privileged providers. According to the Agency, Department of Defense and Agency regulations
prohibit an unprivileged pharmacist from being enrolled in a FPPE Program. The Agency
maintains that Complainant’s previous employment as a GS-11 Staff Pharmacist did not qualify
her as a privileged provider. The Agency states that Complainant was never granted clinical
privileges. The Agency points out that Complainant provided three letters of reference, none of
which attested to her clinical competency as a clinical pharmacist, and none came from a peer.
According to the Agency, none of these letters were acceptable for credentialing purposes.

The Agency argues that the parties’ mutual mistake was their failure to recognize that Complainant
could not obtain the necessary clinical privileges as a clinical pharmacist to enable her to be
enrolled into the FPPE Program. The Agency maintains that the mutual mistake was material to
the settlement agreement’s execution and made it impossible for the Agency to comply. According
to the Agency, ordering specific performance would have a substantial impact on its established
policies, practices, or operations. The Agency contends that it should not be compelled to
specifically perform given that the parties learned that the terms of the settlement agreement
expressly violate federal regulations.
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Further, the Agency asserts that specific enforcement could adversely affect the hospital’s
continuing accreditation status and ability to remain open. The Agency states that instead the
complaint should be reinstated for further processing.

In response, Complainant asserts that the Agency reiterates the arguments it made in response to
her appeal. Complainant states that the Agency has provided no evidence to support its position
that enforcing the settlement agreement would jeopardize the hospital’s ability to remain open and
provide care to patients.

We observe that the Agency has not presented sufficient persuasive evidence in support of its
position. 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), at 9-18 (Aug. 5, 2015); 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 Agency
has not done so here. The record reveals that the Agency is merely reiterating the arguments it
presented on appeal. We discern no persuasive argument or evidence in the Agency’s request for
reconsideration that satisfy the criteria for granting a request to reconsider.

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. 0120180763 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 as set forth below.

ORDER
Within thirty (30) calendar days of the date this decision was issued, the Agency shall provide
Complainant training through a FPPE in accordance with provision 3.a. of the June 23, 2017
settlement agreement.
The Agency is further directed to submit a report of compliance, as provided in the statement
entitled "Implementation of the Commission’s Decision." The report shall include supporting
documentation verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),
she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney
shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity
Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this
decision was issued. The Agency shall then process the claim for attorney's fees in accordance
with 29 C.F.R. § 1614.501.
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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 (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.

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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 12, 2018
Date