[Redacted], Harold M., 1 Complainant,v.Lloyd Austin, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Apr 28, 2021

Appeal No. 2019002989 (E.E.O.C. Apr. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harold M.,1 Complainant, v. Lloyd Austin, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Request No. 2020002894 Appeal No. 2019002989 Agency No. P8-14-0114 DECISION ON REQUEST FOR RECONSIDERATION The Agency requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019002989 (September 24, 2019). 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). During the relevant time, Complainant worked as an IT Software Specialist for the Agency’s Western Region Command Engineering and Analysis - Software Acquisitions Operations Directorate, in Phoenix, Arizona. Believing that he was subjected to a hostile work environment based on his disability, Complainant filed a formal EEO complaint in December 2014. Thereafter, on December 16, 2015, the parties resolved the matter by executing a settlement agreement. The agreement 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. 2020002894 2 1(g) Mitigate Complainant’s July 23, 2015 Three-Day Suspension Decision to a Letter of Discipline as defined by Article 29, Section 7 of the Agency CBA. The Suspension Decision SF-50 will be cancelled and removed from Complainant’s Official Personnel File (OPF). The Suspension Decision letter will be changed to a Letter of Discipline, signed by Management, and then placed in Complainant’s eOPF. This expungement will occur within ninety (90) calendar days of this Agreement. In addition, the subject Letter of Discipline, and any documentation still in existence related to the original suspension, will be removed from Complainant’s eOPF and all supervisory files two years from the date of the suspension decision (a removal date of July 23, 2017) if Complainant has no further disciplinary issues as delineated under the DCMA Table of Penalties for Discipline. Further, as part of the mitigation of the referenced Suspension Decision, the Agency will process the cancellation, correct Complainant’s time card to reflect Regular Hours, and forward the backpay request to DFAS within ninety (90) calendar days of this Agreement. On January 19, 2018, Complainant entered another settlement agreement with the Agency which resolved two grievances and an appeal pending before the Commission. In this agreement the Agency agreed to: a. Within thirty (30) calendar days of the effective date of this agreement, [Agency] will initiate the paperwork necessary to cancel the 1-day suspension, which was effective on September 5, 2017. The Agency will take the necessary steps to remove the action from the Electronic Official Personnel Folder (eOPF) and expunge it from the Civilian Personnel On Line (CPOL) system. This removal and expungement may take as long as 90 days to complete. b. [Complainant] will receive backpay for the one day of scheduled work he was suspended. Every attempt will be made to ensure payment is made within three pay periods from the effective date of this agreement. c. Within thirty (30) calendar days of the effective date of this agreement, [Agency] will issue a letter rescinding the memorandum entitled “Notice of Permanent Status of July 23, 2015 Letter of Discipline (LOD) to Employee File”, dated July 20, 2017. d. Within thirty (30) calendar days of the effective date of this agreement, the Agency will take the necessary steps to remove the Letter of Discipline (LOD) dated July 23, 2015, from [Complainant’s] eOPF and expunge it from the CPOL system. Actual removal and expungement may take as long as 90 days. 2020002894 3 e. Within thirty (30) calendar days of the effective date of this agreement, the Agency will issue a Letter of Warning and Instruction (LOWI) based on the allegation of disrespectful conduct which occurred on July 6, 2017. f. The LOWI will be maintained in Complainant’s supervisor’s folder until July 31, 2018. In a memorandum dated May 23, 2018, Consolidated Adjudications Facility (CAF) informed Complainant of its intent to revoke eligibility for access to classified information and/or assignment to duties that had been designated national security sensitive. Specifically, CAF made reference to a January 2015 reprimand, as well as the July 23, 2015 Three-day Suspension and September 5, 2017 One-day Suspension. Believing that the memorandum showed the Agency to have breached the agreement, by citing the Three-day Suspension (provision 1(g) of December 2015 agreement) and the One-day Suspension (provision a. in the January 2018 agreement), Complainant contacted the Agency. To resolve his breach allegations, Complainant requested that his prior EEOC appeal be reinstated. On July 6, 2018, the Agency issued a decision finding no breach of either settlement agreement. Complainant appealed the decision to the Commission. The Commission could not determine if a breach had occurred and remanded for a supplemental investigation. Harold M. v. Dep’t of Def., EEOC Appeal No. 0120182735 (Nov. 29, 2018). On February 15, 2019, in accordance with our order, the Agency issued a new decision, again finding no breach. Complainant appealed. The Commission reviewed the matter and determined that the Agency had violated the overall intent and spirit of the agreements. The Commission noted that it had previously found that bad faith in negotiating and implementing a settlement agreement constitutes a breach. Todd v. Soc. Security Admin., EEOC Request No. 05950169 (June 12, 1997); Dupuich v. Dep't of the Army, EEOC Appeal No. 0120073901 (Nov. 2, 2007) (where agreement language required Agency to expunge documents from personnel files, but did not specifically prohibit the Agency from retaining copies, Commission found leaving copies of the documents out on a desk “defeated the purpose of the agreement and is evidence of bad faith.”). However, the situation was unique, and reinstating the underlying complaint or ordering specific performance was problematic. Therein, the Commission determined that the appropriate remedy would be to allow reinstatement of the underlying hostile work environment complaint (Agency Case No. P8-14-0114) without requiring a return to status quo ante, which is what was ordered. Harold M. v. Dep’t of Def., EEOC Appeal No. 2019002989 (Sept. 24, 2019). In the Agency’s request for reconsideration, it argued its FAD was appropriately determined and should have been affirmed. The Agency argued that the Commission’s decision clearly involved erroneous interpretation of material fact and law. Specifically, that Complainant was always aware of the security clearance implications, and that any statement he was not aware was false. Additionally, the Agency argued that Complainant had legal representation to help him navigate the situation. The Agency argued that it in no way participated in bad faith negotiations and should not have been held to have acted so. The Agency asserted that the Commission’s prior 2020002894 4 decision should be reconsidered given the material facts of the complaint, the controlling law, and the substantial policy implications. In response, Complainant argued that the Agency’s request for reconsideration should be denied. Complainant argued that allowing the reconsideration would allow the Agency to blatantly disregard any obligations to provide any real value to a complainant when negotiating a settlement agreement. Complainant argued that agencies could essentially engage in bad faith negotiations to its own ends. Complainant asserted that the Agency had clearly and intentionally engaged in bad faith negotiations and therefore should be held accountable. Complainant requested that the Agency’s request for reconsideration be denied. We determine that the matters addressed by the Agency in the instant request were raised or could have been raised below. 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. The Agency 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. 2019002989 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 below. ORDER The Agency is ORDERED to resume processing of the underlying complaint from the point where processing ceased as determined in EEOC Appeal No. 2019002989. The Agency shall acknowledge to Complainant that it has reinstated and resumed processing of the underlying complaint. A copy of the Agency letter of acknowledgement must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the 2020002894 5 compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020002894 6 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, Director Office of Federal Operations April 28, 2021 Date