[Redacted], Latonya D., 1 Complainant,v.Bill Nelson, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

Feb 22, 2022

Appeal No. 2021003888 (E.E.O.C. Feb. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Latonya D.,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration, Agency. Request No. 2022000025 Appeal No. 2021003888 Agency No. NCN-19-GSFC-00354 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021003888 (September 29, 2021). 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). The Agency’s request for reconsideration is DENIED; however, the Commission MODIFIES the previous decision on its own motion. BACKGROUND At the time of events giving rise to this matter, Complainant was employed by the Agency as the Director, Goddard Child Development Center, with the Goddard Space Flight Center, Goddard Employees Welfare Association in Greenbelt, Maryland. On October 31, 2019, Complainant and the Agency entered into a settlement agreement. It stated, 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. 2022000025 2 1. Effective November l, 2019, the Agency agrees that Complainant’s primary point of contact for all matters relating to the Goddard Child Development Center (GCDC) Association will be [the Goddard Space Flight Center Chief of Staff and President of the Goddard Childcare Development Center Association’s Board of Directors (“Person 1”)] or her designee. There will be no further need for Complainant to report to [her second line supervisor (“S2”)] in this regard. 2. The parties acknowledge that a new Goddard Employees Welfare Association (GEWA) Program Manager… was recently selected and will begin transitioning into this role in the near term [becoming, effective December 23, 2019, Complainant’s first line supervisor (“S1”)]. Should Complainant have any concerns related to the performance of her director responsibilities for GCDC, she may seek guidance or assistance either from [Person 1] or [S1]. On April 20, 2021, S1 notified Complainant that her service was being terminated for the 2021- 2022 school year. S1 stated that Complainant’s removal was, in part, for not making any effort to raise or resolve her disagreements with him, instead seeking recourse from other Goddard Space Flight Center or GEWA officials without conferring directly with him. On April 26, 2021, Complainant alleged a breach of the settlement agreement when, in terminating her, the Agency partly relied on her allegedly not conferring with S1, but instead seeking recourse from others. However, this referred to her speaking with Person 1 about her director responsibilities, which the settlement agreement explicitly permitted. The Agency determined that it complied with the settlement agreement. Complainant appealed the Agency’s determination to the Commission. On September 29, 2021, the Commission found that the Agency did not breach the settlement agreement. Specifically, term 1 of the settlement agreement permitted Complainant to use Person 1 as a point of contact for matters relating to the Association’s Board of Directors, which is over the GCDC, but this was unrelated to Complainant not making any effort to confer directly with S1 to resolve her disagreements with him. In addition, while term 2 allowed Complainant to seek guidance or assistance about her director responsibilities from either Person 1 or S1, this did not mean that the settlement agreement exempted her from conferring directly with S1 to resolve her disagreements with him. Latonya D. v. Nat’l Aeronautics Space Admin., EEOC Appeal No. 2021003888 (Sept. 29, 2021). Complainant also argued that the settlement agreement was invalid due to a lack of consideration on appeal. However, the Commission determined that the settlement agreement was valid because the Agency took on a legal detriment by requiring Person 1, the Goddard Space Flight Center Chief of Staff and President of the GCDC Association’s Board of Directors, to be responsive to Complainant’s concerns regarding the Association’s Board of Directors, instead of S2, and to provide guidance or assistance when requested by Complainant about her director responsibilities, which added responsibilities to Person 1. Id. 2022000025 3 The Commission affirmed the Agency’s decision finding that Complainant had not established a settlement breach. However, the Commission noted that Complainant raised a discrimination claim when she was removed and ordered the Agency to process the claim in accordance with 29 C.F.R. Part 1614. Id. On October 4, 2021, the Agency requested a partial reconsideration of the Commission’s decision of the order to remand and process Complainant’s claim of discrimination for her removal. The Agency alleges a clearly erroneous interpretation of law or fact. The Agency states that the appeal record did not reflect that Complainant already filed a separate EEO complaint based on her April 20, 2021, termination, which was currently being processed. The Agency asserts that the Commission erroneously remanded the complaint without knowledge of the already existing EEO complaint and provided evidence to show that it processed the complaint. As such, the Agency requests that the Commission rescind its previous order. ANALYSIS AND FINDINGS 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. As noted by the Agency, the record lacked any information about Complainant’s EEO complaint alleging discrimination for her removal. We find that the previous appellate decision was based on the existing record, and there is no evidence that the Commission misinterpreted any fact or law. Accordingly, we find that the Agency has not met its burden to show that the appellate decision involved a clearly erroneous interpretation of material fact or law and DENY the Agency’s request for reconsideration. However, the Commission exercises its discretion to reconsider the matter on its own motion in order to MODIFY the previous decision and rescind the order based on the Agency’s newly raised evidence showing that the matter addressed in the order was being processed under another complaint. The decision in EEOC Appeal No. 2021003888 otherwise remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. 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. 2022000025 4 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 February 22, 2022 Date