[Redacted], Chong O., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Mar 31, 2021

Appeal No. 2021001066 (E.E.O.C. Mar. 31, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chong O.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2021001066 Agency No. 2016-26543-FAA DECISION On October 19, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) when more than 35 days passed after he served the Agency with allegations of noncompliance with a settlement agreement the parties entered into and the Agency had not yet issued a final determination decision. See 29 C.F.R. § 1614.402(a) and .504(b).2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Implementation Manager at the Aviation Surface Weather Observation Network (ASWON) Program in Seattle, Washington. Believing that the Agency subjected him to unlawful 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. 2 Agency counsel argues that Complainant’s appeal is untimely because it was filed more than 35-days after he served his notice of breach to the Agency. Regarding this, Agency counsel points to language in the settlement agreement on the time limit to appeal to the EEOC, which tracks 29 C.F.R. § 1614.504(b). Agency counsel misreads the regulation. It means that a complainant must wait for 35-days to appeal after filing the notice of breach where no final Agency determination thereon was made, not that it must be filed within 35-days. 2021001066 2 discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On January 19, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 1. The Agency agrees: a. Within fifteen (15) calendar days of the execution of this agreement [identified] Division Manager Regional Acquisitions AAQ-500 will request that a security investigation to be conducted in the Acquisitions Branch (AAQ-530). The investigation is being conducted to determine if the following allegations are true: … 3. Are there customers that interact with [an identified female manager] that feel she has been speaking negatively about [Complainant] that could affect people's perceptions of him as a professional. b. The aforementioned security investigation will be completed no later than 120 calendar days following the execution of this agreement. c. No later than fifteen (15) calendar days following the receipt of the Investigative Report (IR), [identified] Manager Acquisitions Branch (AAQ-530) will convene a meeting to address findings and develop an appropriate action plan if necessary. Participants invited to the meeting will be [Complainant] and two [identified employees]…. 7. The Parties agree to fully cooperate with each other to implement all terms and conditions of this Resolution Agreement. Previously, Complainant appealed the July 22, 2016 and August 24, 2016 final Agency determinations finding that contrary to Complainant’s claim, the Agency complied with the above settlement agreement. In EEOC Appeal No. 0120162747 (Dec. 2, 2016), the Commission found that the Agency complied with settlement agreement term 1.a. by conducting the investigation and with term 1.c. by holding the meeting. The Commission found that to the extent that the Agency breached term 1.b. by completing the investigation 26 days late, the Agency cured the breach within 30 days of the date Complainant filed his breach claim. See 29 C.F.R. § 1614.504(b), which gives the Agency an opportunity to resolve a breach after receiving a notice of breach. 2021001066 3 By letter to the Agency dated August 24, 2020, Complainant again alleged that the Agency was in breach of the settlement agreement and requested that his informal EEO complaint be reinstated. Specifically, Complainant alleged that the Agency failed to comply with terms 1.a.3, 1.b., 1.c., and 7. After the Agency did not issue a final Agency determination on Complainant’s new breach claim, the instant appeal followed. ANALYSIS In EEOC Appeal No. 0120162747 (Dec. 2, 2016) the Commission previously determined that Complainant failed to prove the Agency did not comply with settlement agreement terms 1.a.3, 1.b., and 1.c. and that decision is final. Complainant did not request that the Commission reconsider the above appellate decision. On appeal, Complainant advances various arguments for why the Commission should revisit the conclusion in EEOC Appeal No. 0120162747, none of which we find persuasive. Because Complainant failed to show that the Agency did not implement its obligations under the settlement agreement, we disagree with his contention that the Agency breached term 7 by failing to cooperate by not implementing them. CONCLUSION We decline to revisit the finding in EEOC Appeal No. 0120162747 that Complainant failed to show the Agency breached terms 1.a.3, 1.b., and 1.c. of the January 19, 2016 settlement agreement into which the parties entered. Here, Complainant has also failed to show that the Agency breached term 7 of the settlement agreement. 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. 2021001066 4 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. 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. 2021001066 5 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 March 31, 2021 Date