Marquis K.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Nov 23, 2016

0520160519 (E.E.O.C. Nov. 23, 2016)

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

Marquis K.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Request No. 0520160519

Appeal No. 0120161801

Agency No. HSICE013922011

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested reconsideration of the decision in EEOC Appeal No. 0120161801
(August 17, 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).

The record indicates that the partied entered into a settlement agreement on December 17,
2015, resolving Complainant’s complaint. The settlement agreement provided, in pertinent
part, that:

3. The Agency agrees to the following:

(a) Select Complainant for the Detention and Deportation Officer (DDO) position he
applied for in Washington, D.C., under vacancy announcement No. LAG-ER0-
421548-MA-040, at the GS-1801-13, Step 2 pay level, with an effective 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.
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retroactive to February 13, 2011. Complainant’s official personnel records will
reflect that he was promoted to the GS-1801-14, Step 1 pay level on February 12,
2012, after meeting time in grade requirements;

(b) Assign Complainant from the DDO position in Washington, D.C. (outlined in
paragraph 3(a)) to the Deportation Officer (Detention Standards Compliance
Officer) position in Houston, Texas at the GS-1801-13, Step 10 pay level with an
effective date established by the parties within thirty (30) days of the date
Complainant signs this agreement;

(c) Pay Complainant back pay with interest and other benefits (such as Administrative
Uncontrollable Overtime, Overtime/45 Act or other premium pay) that he would
have received had he been selected to the DDO position in Washington, D.C.
(outlined in paragraph 3(a)) on February 13, 2011, within one hundred and eighty
(180) days of the date Complainant signs this agreement. The back pay will cease
upon the effective day of this agreement;

(d) Pay Complainant a total lump sum of the forty thousand dollars ($40,000) by
electronic funds transfer within sixty (60) days of the date Complainant signs this
agreement. The back pay will cease upon the effective day of this agreement;

(e) Provide Complainant with twenty (20) days of administrative leave, with an
effective date mutually agreed upon by the parties within thirty (30) days of the date
Complainant signs this Agreement. Complainant will also receive two (2) days
administrative leave from the losing office and three (3) days of administrative leave
from the receiving office for a total of five (5) days.

Thereafter, Complainant alleged that the Agency breached the settlement agreement when it
failed to select him for a GS-14 DDO position in Vermont. On March 15, 2016, the Agency
determined that it did not breach the settlement agreement. Complainant appealed the
Agency’s determination and argued: that the agreement was made in bad faith; he was denied a
security clearance; the Agency did not pay his relocation expenses; and his compensatory
damages were purposely paid on December 31, 2015, so that he would be taxed on it just four
months later in April, 2016. The Commission affirmed the Agency’s determination that it did
not breach the settlement agreement and found no evidence that the Agency entered into the
agreement with bad faith. In his request, Complainant merely reiterates the argument that the
Agency entered into the agreement with bad faith.

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. 0120161801 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request.

0520160519

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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

November 23, 2016
Date