0520180451
09-14-2018
Ghassan Ghannoum, a/k/a Harvey D,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ghassan Ghannoum, a/k/a
Harvey D,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520180451
Appeal No. 0120172372
Agency No. 200P06912013102219
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120172372 (March 7, 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).
Complainant worked as a Police Officer at the Agency's Health Care System in Los Angeles, California. On April 22, 2015, Complainant and the Agency entered into a settlement agreement that provided, in pertinent part:
(1) That for the next two years [the Agency] shall provide Complainant with priority consideration for the next position that he applies for, and requests priority consideration, and is found to be qualified for, and is on the Best Qualified list. For purposes of this agreement, priority consideration means that only Complainant's application will be forwarded to [Chief 1] for decision as to whether or not he will be hired under "priority consideration."
(2) If not selected under priority consideration by [Chief 1], Complainant will be given a written explanation by [Chief 1]
(3) If not selected under priority consideration, Complainant's name will be forwarded along with others on the Best Qualified list to the selecting official and Complainant will be considered for the job, along with the other qualified applicants by whomever is the decision maker.
(4) To pay attorney's fees to [Complainant's attorney], not to exceed $25,000.
Complainant alleged the Agency breached the agreement when it did not post any position for which he could have been qualified in order to use the settlement agreement. The Agency issued a decision on the matter stating that there was insufficient evidence to show it had complied with the agreement, and noted that Chief 1 was no longer with the Agency. The Agency also offered to reform the agreement, to reflect that the Chief of Police and Emergency Management Service or his/her successor would be obligated to providing priority consideration. Our prior decision found a mistake was made when the agreement designed a specific individual - Chief 1- to address whether Complainant should be hired under priority consideration. Our decision noted that the parties did not contemplate the departure of Chief 1. The decision ordered that Complainant be given the option to return to the status quo prior to the signing of the agreement or to proceed with reformation of the agreement.
In his request for reconsideration, Complainant expresses his disagreement with the previous decision.2 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. 0120172372 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ordered to notify Complainant of his option to return to the status quo prior to the signing of the settlement agreement or to proceed with a reformation of the settlement agreement in accordance with the terms set forth by the Agency in its final decision. The Agency shall so notify Complainant within thirty (30) calendar days of the date this decision is issued.
The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency whether he wishes to return to the status quo prior to the signing of the agreement or that he wishes to proceed with a reformation of the settlement agreement in accordance with the terms set forth by the Agency in its final decision. Complainant shall be notified that in order to return to the status quo ante, he must return any monies or benefits received pursuant to the agreement.
The Agency shall determine any payment due Complainant, or return of consideration or benefits due Complainant, within thirty (30) calendar days of the date this decision is issued, and shall include such information in the notice to Complainant.
If Complainant elects to return to the status quo ante and he returns any monies or benefits owing to the Agency as specified above, the Agency shall resume processing of Complainant's complaint from the point processing ceased pursuant to 29 C.F.R. � 1614.108 et seq. If Complainant elects not to return to the status quo ante, i.e., not to return any consideration owing the Agency, the Agency shall notify Complainant that the terms of the settlement agreement shall be reformed in accordance with the terms set for by the Agency in its final decision. If Complainant failed to make an election, the Agency shall reform the settlement agreement to solely include the provision regarding attorney's fees, which has already been awarded.
A copy of the Agency's notice to Complainant regarding his options, including the determination of consideration due or owing, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying Complainant that the terms of the settlement agreement have been reformed, must be sent to the Compliance Officer, as referenced below.
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 (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
September 14, 2018
__________________
Date
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.
2 Complainant asserts he did not receive a copy of our decision until May 29, 2018.
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