Latricia P.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Feb 7, 2018

0520180015 (E.E.O.C. Feb. 7, 2018)

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

Latricia P.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Request No. 0520180015

Appeal No. 0120152063

Agency No. FBI-2014-00042

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120152063 (September 21, 2017).
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).

On December 4, 2014, Complainant and the Agency entered into a settlement agreement to
resolve Complainant’s EEO complaints. The settlement agreement provided in relevant part,
that:

4. As evidence of a good faith effort to resolve file numbers 280F-HQ-A5587908; 280F-
HQ-A5531967 & 280F-HQ-A4126131, the [Agency] offers and the complainant accepts
the following:

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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A. The [Agency] agrees to transfer the Complainant to the Intelligence Workforce
Planning and Analytics Unit. This lateral transfer to a Management and Program
Analyst Position at a GS-14 will be completed by December 14, 2014 the beginning
of the pay period.

B. The [Agency] agrees to restore 24 hours of annual leave and 80 hours of sick leave
within 45 days of the execution of this agreement.

C. The Directorate of Intelligence Assistant Director will review the Performance
Appraisal Rating for FY 2014 and raise the overall rating to a minimum of a “Fully
Successful” no later than December 15, 2014.

D. The [Agency] will reimburse the Complainant for medical expenses incurred not to
exceed $1,500.00. The Complainant will provide the OEEOA’s ADR Program
Manager with detailed documentation of paid medical expenses no later than
December 14, 2014. Upon receipt of the information, the ADR Program Manager
will coordinate with Finance Division to ensure reimbursement transaction is
completed. No later than forty-five (45) days of the receipt of the documentation,
financial reimbursement will be mailed to the Complainant at her residence…

6. The [Agency] agrees that there shall be no discrimination or retaliation of any
kind against the complainant as a result of filing this charge or against any person
because of opposition to any practice deemed illegal under the Rehabilitation Act, the
Age Discrimination in Employment Act, Title VII of the Civil Right Act of 1964, as
amended, or the Equal Pay Act, as amended, as a result of filing this charge, or for giving
testimony, assistance or participating in any manner in an investigation, proceeding,
hearing, or mediation, under the aforementioned statutes.

Subsequently, Complainant informed the Agency by e-mail dated December 15, 2014, that it had
breached the settlement agreement. Complainant did not specify the nature of the alleged breach
nor did she state whether she was seeking specific performance or reinstatement of the
complaints. In its final decision, the Agency determined that it had complied with all terms of
the settlement agreement and that no breach had occurred.

On appeal, the Commission affirmed the Agency’s determination that it had not breached the
settlement agreement. The Commission stated that Complainant had not explained the nature of
the alleged breach and had not presented any arguments contesting the final agency decision.

In her request for reconsideration, Complainant argues that she has been subjected to retaliatory
actions since the execution of the settlement agreement. Complainant states that she was not
treated equally when the Unit Chief refused to mention her departure/transfer and when her
Supervisor was prohibited from sharing such news with her unit members. Complainant
maintains that her transfer was not completed until December 28, 2014, later than the agreed
transfer date of December 14, 2014. It is unclear but Complainant appears to argue that she has
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received unjust performance ratings and was removed from her position subsequent to the
execution of the settlement agreement.

As for the transfer of Complainant to the Intelligence Workforce Planning and Analytics Unit,
we observe that although the transfer did not occur by December 14, 2014, it was effective on
December 28, 2014. Thus, we find that the Agency cured this breach of the settlement
agreement. With respect to there being no announcement of Complainant’s departure from her
former unit and the unjust performance ratings and removal that Complainant appears to allege,
Complainant is advised that to the extent she desires to address any new claims of discrimination
and/or reprisal, she should initiate EEO counseling with the Agency as those claims must be
addressed in a separate complaint. 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. 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. 0120152063 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.

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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

February 7, 2018
Date