[Redacted], Ardelle P., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Oct 25, 2021

Appeal No. 2021003497 (E.E.O.C. Oct. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ardelle P.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2021003497 Agency No. HUD-00010-2020 DECISION On May 14, 2021, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an April 16, 2021 final Agency determination (FAD) that it complied with the terms of the settlement agreement that the parties entered into. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND When Complainant filed her breach claim, she was employed by the Agency as a Budget Analyst, GS-0560-12, at the Office of Budget and Field Resources within the Office of Housing Finance and Budget in Washington, D.C. After Complainant contacted an Agency equal employment opportunity (EEO) counselor to initiate the EEO complaint process, on May 11, 2020, she and the Agency entered into a settlement agreement to resolve the matter. It provided, in pertinent part, that: 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. 2021003497 2 Third: Within sixty (60) calendar days of the execution of this agreement, the Agency agrees to: 1. Reassign the Complainant... to the Office of Budget and Field Resources, within the Office of Housing Finance and Budget [from another sub-office] as a Budget Analyst GS-0560-12 with no further promotion potential…. Fourth: If the Complainant alleges that subsequent acts of discrimination or reprisal violate the Settlement Agreement, the Complainant will follow the procedures as outlined in 29 C.F.R. § 1614.105, et seq. The Department will process the new allegations as a separate complaint. Complainant was reassigned, as agreed in the third provision, effective May 24, 2020. On or about March 11, 2021, Complainant alleged in writing to the Agency that it breached the settlement agreement by subjecting her to discrimination and harassment after she was reassigned regarding assignments, training, a letter of counseling, negative comments on her year-end evaluation, a delayed performance award, being denied a detail, being denied compensatory time as a religious accommodation, being spoken to in a sharp dominating disrespectful tone, and other matters. In its April 16, 2021 FAD, the Agency found it complied with the settlement agreement. It concluded Complainant’s breach claim appeared to concern allegations of discrimination that occurred after the settlement agreement, not breach. It recounted that on March 12, 2021, Complainant initiated EEO counseling on the same allegations, and was receiving EEO counseling on them. The instant appeal followed. ANALYSIS EEOC Regulation 29 C.F.R. § 1614.504, which sets forth the breach of settlement agreement claim process, at .504(c) states “Allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints under § 1614.106… rather than under this section.” On appeal, Complainant argues the Fourth section of the settlement agreement means, “I would not be subjected to discriminatory reprisal or retaliation as a condition of settlement…”, and the Agency breached this term by doing so. She misinterprets the Fourth section. The reference therein to 29 C.F.R. § 1614.105 et seq. procedures and new allegations being processed as a separate complaint means Complainant must initiate EEO counseling on new acts of discrimination and reprisal that occur after the settlement agreement, and the Agency must process them as a new case, which it represents in the FAD is being done. 2021003497 3 Accordingly, the FAD is AFFIRMED.2 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish 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. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2 We advise the Agency that Complainant should be viewed as having EEO counseling on her new claims when she submitted her breach claim or initiated EEO counseling on her new claims, whichever was first, since they regard the same matters. 2021003497 4 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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. If you file a request to reconsider and also file a civil action, 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 October 25, 2021 Date