Nina M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Feb 22, 2018

0520180069 (E.E.O.C. Feb. 22, 2018)

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

Nina M.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Request No. 0520180069

Appeal No. 0120171686

Agency No. RD201000592

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120171686 (September 19, 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).

Previously, on July 9, 2010, Complainant filed a formal complaint alleging that she was
subjected to unlawful discrimination based on age, sex, race, and in reprisal for prior protected
EEO activity. In October 2010, the formal complaint was accepted for investigation

Approximately two years later, the investigation was still ongoing. On August 24, 2012,
Complainant requested a hearing before an EEOC Administrative Judge (AJ). While the case
was pending before the AJ, the investigation was completed and a Report of Investigation was
issued on November 1, 2012. On November 30, 2012, Complainant requested a final decision
from the Agency. On January 11, 2013, the Agency issued a final decision finding no

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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discrimination. Complainant did not appeal the decision to the Commission. Over a year later,
in May 2014, the AJ ordered a dismissal of Complainant’s hearing request.

Six months later, in November 2014, the parties entered mediation. On November 3, 2014, the
parties entered into a settlement agreement which provided, in pertinent part, that the Agency
would:

(1) reassign Complainant from the position of Loan & Grant Technician GS-1101-8 to
the position of Loan Specialist, GS-9/11/13 in the Postloan Servicing Branch,
Portfolio Management and Risk Assessment Division Telecommunications Program,
Rural Utilities Service, Rural Development . . . within 90 days of the effective date of
this Agreement. . . . In this position, Loan Specialist, GS-9/11/13 Complainant will
be provided the necessary training by the Agency to be able to maximize her
performance as it relates to the duties of this position.
(2) to provide Complainant with back pay for vacancy number 09-RUS73KA, at the GS-
1165-9, Step 7, from December 1, 2009 to the date of the signing of this agreement.
(3) to pay Complainant a lump sum of Ten Thousand Dollars ($10,000) in the form of an
electronic transfer.
(4) within forty-five (45) calendar days from the effective date of this Agreement, the
Agency will submit documentation to the National Finance Center to [a]ffect the
payment of the lump-sum amount of Ten Thousand Dollars ($10,000) to the
Complainant.

By letter to the Agency dated April 10, 2015, Complainant alleged the Agency breached the
settlement agreement, and requested that the Agency implement its terms. Specifically,
Complainant alleged that the Agency failed to provide her with the proper pay for her
reassignment. Further, she stated she had not received the back pay required by the agreement.

On September 1, 2015, the Agency issued a decision finding that the entire agreement was
unenforceable. According to the Agency, the settlement was mistakenly executed after
Complainant’s July 9, 2010 complaint, addressing the same matters, was adjudicated. The
Agency also claimed that the settlement agreement was invalid due to lack of consideration. The
Agency determined that Complainant was aware of the Agency’s mistake and should not benefit
from the error. Finally, the Agency determined even if the agreement was valid, the Agency
found the terms to be unenforceable on the ground that such a promotion violated the merit
systems principles and the back-pay award contravened various federal regulations.

Complainant appealed the decision to the Commission. In EEOC Appeal No. 0120152710
(October 27, 2016), the Commission was not persuaded by the Agency’s arguments that the
settlement should be considered void and unenforceable. We noted that “nothing” in the record
supported the Agency’s claim that Complainant intentionally misled the Agency when the parties
executed the agreement. Moreover, the Commission found it “disingenuous for the Agency to
place blame for this matter on Complainant when an Agency official was a signatory . . . . That
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the Agency should unknowingly enter into a settlement agreement on a settled matter is not the
fault of Complainant.”

Finding that the agreement was valid, the Commission turned next to Complainant’s allegation
of breach. We found the record to be insufficient to make a breach determination. The matter
was remanded to the Agency for a supplemental investigation and a new Agency decision
regarding whether the Agency was in compliance with the November 3, 2014 agreement.

The Agency issued a new decision on February 15, 2017. The Agency found that assuming the
contract was valid, the terms were unenforceable. According to the Agency, Complainant’s
Loan & Grant Technician position did not have promotion potential to a GS-13, while her
reassignment to the Loan Specialist, GS-09/11/13 did, in violation of “OPM merit promotion
principles.” The Agency also argued that the Commission previously refused to enforce
settlement agreement terms that contradicted OPM regulations and guidelines regarding
retirement benefits. With respect to the back-pay provision, the Agency stated that regulations
prohibited payment beyond 120 days.

In EEOC Appeal No. 0120171686 (September 19, 2017), the Commission found that the Agency
did not establish that provision (1) was unenforceable. The Commission proceeded to find that
the Agency’s failure to implement the reassignment was in breach of the settlement agreement.
The Commission also determined the Agency’s failure to provide payment to Complainant, as
set forth in provision (2), constituted a breach. The Commission ordered specific performance of
the terms of the agreement as the appropriate remedy for the breach.

Thereafter, the Agency filed the present request for reconsideration. 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. 0120171686 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 herein.

ORDER

The Agency is ORDERED to undertake the following actions:

1. Within 60 calendar days of the date this decision is issued, and to the extent
the Agency has not previously done so, the Agency shall comply with the
actions required in provisions (1) and (2) of the November 3, 2014 settlement
agreement.

2. 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
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action has been implemented. The Agency shall send a copy of the report,
with supporting documentation, to Complainant.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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.
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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 22, 2018
Date