Irvin C.,1 Complainant,v.Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

Jan 6, 2016

0520150461 (E.E.O.C. Jan. 6, 2016)

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

Irvin C.,1
Complainant,

v.

Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration,
Agency.

Request No. 0520150461

Appeal No. 0120151028

Agency Nos. NCN-09-GRC-017; NCN-09-GRC-058; NCN-10-GRC-007; NCN-10-GRC-031;
NCN-10-GRC-069; NCN-10-GRC-079; NCN-10-GRC-093; NCN-11-GRC-029; NCN-11-
GRC-038

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120151028 (June 12, 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).

On April 14, 2011, Complainant and the Agency entered into a settlement agreement to resolve
a matter after Complainant initiated the EEO complaint process. The settlement agreement
provided, in pertinent part, that:

(1) (g) Within 60 days of the execution of this settlement agreement, the Agency will
expunge all supervisory records related to Complainant from the GRC EEO Office.

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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(h) Within 60 days of the execution of this settlement agreement, the Agency will
redact the official files of Complainant's performance appraisals as reflected on the
copies included as Attachment C.

By letter to the Agency dated August 19, 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 his new supervisor stated that she was aware of
his prior EEO activity based on a copy of the settlement agreement she found in his personnel
file. In its December 11, 2014 final determination, the Agency concluded that it was in full
compliance with the relevant terms of the agreement. Complainant appealed arguing that he
was not provided the “fresh start” envisioned by the Settlement Agreement. In Complainant v.
Nat’l Aeronautics and Space Admin., EEOC Appeal No. 0120151028 (June 12, 2015), the
Commission found that the Complainant failed to show that the Agency had breached provision
(1)(h). However, the Commission found that the Agency had breached provision 1(g) as the
evidence showed that the Agency had not expunged all of the supervisory records maintained
by Complainant’s prior supervisor concerning Complainant while he worked in the GRC EEO
Office. The Commission found that the only corrective action that should be taken was for the
Agency to remove the supervisory records existing as of the date the settlement agreement was
executed from the GRC EEO Office’s records. The Commission remanded the matter to the
Agency for the necessary remedial action.

In his request for reconsideration, Complainant reiterates numerous arguments he previously
raised in his appeal, including that he should be compensated for the actions of his new
supervisor. 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. 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. 0120151028 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request. To the extent that it has not already done so, the Agency shall
comply with the Order as set forth below.

ORDER (C0610)

The Agency is ordered to take the following remedial action:

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(1) The Agency shall remove all supervisory records related to Complainant (that were
created prior to the execution of the settlement agreement) from the records of the GRC
EEO Office.

(2) The Agency shall provide Complainant the opportunity to review his records at the
GRC EEO Office to ensure there are no relevant supervisory records maintained at that
office, including the agreement itself.

(3) The Agency shall complete all of the above actions within thirty (30) calendar days
from the date on which the decision becomes final.

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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency's report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. 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
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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.
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

January 6, 2016
Date