[Redacted], Merle S., 1 Complainant,v.Barbara M. Barrett, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Dec 21, 2020

Appeal No. 2019005892 (E.E.O.C. Dec. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merle S.,1 Complainant, v. Barbara M. Barrett, Secretary, Department of the Air Force, Agency. Request No. 2020002538 Appeal No. 2019005892 Agency No. 413417001 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Merle S. v. Dep’t of the Air Force, EEOC Appeal No. 2019005892 (January 23, 2020). 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 period at issue, Complainant worked as an Industrial Security Specialist, GS-12, at the Agency’s Joint Intelligence Branch, Joint Intelligence Division, Joint Intelligence Directorate (J2) in Arlington, Virginia. On December 11, 2015, Complainant contacted an EEO Counselor alleging discrimination based on disability and in reprisal for prior EEO activity. On April 5, 2019, Complainant and the Agency entered into a settlement agreement resolving the matter. The settlement agreement included, in pertinent part, the following provisions: 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. 2020002538 2 Provision 2: The Agency, in consideration of the mutual promises contained herein, agrees to pay Complainant the sum Seventy-Five Thousand Dollars ($75,000.00) as full and final settlement which is comprised of payment for attorney’s fees and compensatory damages. Provision 3: Agency made an independent determination that all of the derogatory information input by the Agency was in error and will expunge all derogatory information in Complainant’s Official Personnel File, local employee folders or personnel notes regarding Complainant from August 8, 2015 to the date of the signing of this instrument. Provision 4: Agency will restore to the Complainant 176 Regular Pay hours for the 176 hours of Absent without Leave hours from August 8, 2014 to March 30, 2019 which the Agency has determined independently was in error. Provision 5: Agency will restore 40 hours Regular Pay hours of Complainant’s pay during Complainant’s 40-hour suspension which the Agency determined independently was in error. Provision 6: Agency will restore 16 hours of Complainant’s Time-Off Award hours from August 8, 2015 to March 9, 2019 which the Agency determined independently was in error. Provision 7: Agency will restore 122 hours of Complainant’s Sick Leave hours from August 8, 2015 to March 30, 2019 which the Agency determined independently was in error. Provision 8: Agency will restore 480 hours of Complainant’s Annual Leave hours from August 8, 2015 to March 30, 2019 which the Agency determined independently was in error. Provision 9: Agency will realign Complainant’s reporting chain of command from the J2 to the NGB Joint Chief of Staff Office. Provision 10: Agency will change Complainant’s Duty Title from Assistant Security Manager on his Position Description Duty 1 to Activity Security Manager and will refer to his Duty Title as Activity Security Manager throughout the Position Description. Provision 11: Agency will reinstate all of Complainant’s Security Manager Duties and Responsibilities as specified in his Position Description. Provision 12: Agency will provide a neutral reference by informing the reference seeker that employment information is available to employees directly from the data source, Defense Civilian Personnel Data Systems (DCDPS), and can be sent directly to the requestor by the employee. Provision 13: Agency will request OPM conduct an official and immediate Desk Audit, to be performed by authorized personnel, of AFCPD #02187 to include added National Guard Bureau Joint Staff Security Manager Duties performed by Complainant during the dates of alleged discrimination, from August 8, 2015 to March 30, 2019, to be completed within 30 days of 2020002538 3 acceptance of this settlement and the results will be made available to Complainant’s representative within 45 days of completion. If management input is sought for the Desk Audit, the Director of ANG Security will be consulted. If findings show the duties performed by or the responsibilities given to Complainant exceed his government paygrade, that Complainant be retroactively credited for time in grade and time in service so associated. On August 16, 2019, Complainant appealed to the Commission claiming that the Agency failed to meet the majority of its obligations under the settlement agreement. The Agency issued its determination that it had breached some of the terms but complied with the most thereof. In response to Complainant’s appeal, the Agency indicated that it complied with Provisions 2, 4, 6, 7, 8, 9, 10, 11, and 12. The Agency stated that it could not comply with Provisions 3, 5, and 13 because Provisions 3 and 5 conflict with Executive Order 13839 and it lacked the authority to implement Provision 13. The Commission found that the Agency complied with Provisions 2, 4, 6, and 8 - 12.2 The Commission also found that Complainant established that the Agency was in breach of Provisions 3, 5, and 13 of the settlement agreement and the Agency did not have the capacity to cure the breach of those Provisions. As such, the Commission ordered the Agency to either reinstate Complainant’s underlying EEO complaint or reform the settlement agreement to require specific performance of its terms with exception of Provisions 3, 5, and 13. In his request, Complainant reiterates arguments he previously made and provides no evidence to warrant granting his request. 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) (Aug. 5, 2015), at 9-18; 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. Complainant has not done so here. In response, the Agency proffers no arguments in opposition to Complainant’s request. 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. 2019005892 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. Accordingly, we REMAND the matter to the Agency for actions in accordance with the ORDER below. 2 It appears that the Commission made a typographical error not including Provision 7. Complainant did not dispute the Agency’s compliance of Provision 7 on appeal. In his request, Complainant acknowledges that the Agency complied with Provision 7. 2020002538 4 ORDER The Agency is ordered to take the following actions: 1. Within 30 calendar days of the date of this decision, the Agency is ordered to notify Complainant of the option to either: (1) return to the status quo prior to the signing of the April 5, 2019 settlement agreement and have his underlying complaint reinstated for processing, or (2) obtain specific performance of the agreement as reformed to exclude provisions 3, 5 and 13. The Agency shall also notify Complainant that he has 15 calendar days from the date of his receipt of the Agency's notice within which to notify the Agency which option he wishes to pursue. Complainant shall be notified that, in order to return to the status quo ante, he must return any monetary benefits (if applicable) or other benefits received pursuant to the agreement. 2. If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand, and the Agency will abide by all terms, except for provisions 3, 5, and 13, of the agreement. 3. If Complainant elects to reinstate the underlying EEO complaint, the processing of the EEO complaint will resume from the point processing ceased pursuant to the procedures detailed in 29 C.F.R. Part 1614. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 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). 2020002538 5 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 (Q0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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. The court has the sole discretion to grant or deny these types of requests. 2020002538 6 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 December 21, 2020 Date