Reginald B.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 14, 2016

0520160457 (E.E.O.C. Oct. 14, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Reginald B.,1
Complainant,

v.

Eric K. Fanning,
Secretary,
Department of the Army,
Agency.

Request No. 0520160457

Appeal No. 0120142537

Agency No. ARSHAFTER13JUL02342

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in EEOC Appeal No.
0120142537 (July 8, 2016). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision 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 record indicates that on September 4, 2013, Complainant filed his complaint alleging
discrimination based on race, national origin, age, disability, religion, and in reprisal for prior
EEO activity when from May 13, 2013, to September 17, 2013, his supervisor counseled him
for his work performance and leave, changed his work starting time, and issued him a letter of
reprimand. On December 13, 2013, the parties entered into a settlement agreement resolving
the complaint, which, in pertinent part, provided that:

2. The Agency agrees to the following:
a. To transfer Complainant’s work supervisor to someone other than [the
supervisor] within 60-days of this agreement.

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.
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b. To reduce the time of Complainant’s letter of reprimand dated September
17, 2013, to one year from the effective date.
c. To change his 2013 overall work performance rating from a level 4 to a
level 2 within 60-days of the date of this agreement.
d. To restore 20 hours of sick leave within 60 days of the date of this
agreement.

On May 8, 2014, Complainant alleged that the Agency breached item 2.a. of the settlement
agreement. On June 18, 2014, the Agency issued its decision finding that it has failed to
comply with item 2.a. of the settlement agreement. On appeal, the Commission found that the
Agency did breach item 2.a. of the settlement agreement and ordered the Agency to either
reinstate the complaint or obtain specific performance of the agreement. In its request, the
Agency states that as Complainant retired on February 2, 2016, both reinstatement of the
complaint and specific performance of the agreement are remedies no longer available. In
response to the Agency’s request, Complainant indicates that his complaint should be
investigated regardless of his retirement.

We find that as specific performance is no longer an available remedy for provision 2.a of the
settlement agreement and because Complainant wishes reinstatement of the settled complaint,
the Agency will be ordered to reinstate the complaint. There was no error in the prior decision
giving Complainant the option of reinstating the complaint. Complainant’s retirement in no
way precludes reinstatement of the complaint. The Agency’s argument on appeal seems more
in the nature of arguing that the settled complaint is now moot. If the Agency believes the
underlying complaint is moot, then it should issue a decision dismissing the complaint as moot
and giving Complainant appeal rights to this Commission. We do not address in this decision
whether the underlying complaint is moot.

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. 0120142537 remains the
Commission's decision with a modified Order as set forth herein. 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 herein.

ORDER

The Agency is ordered to process the underlying complaint that was settled in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to Complainant that it has received the
remanded claims within 30 calendar days of the date this decision is issued. The Agency shall
issue to Complainant a copy of the investigative file and also shall notify Complainant of the
appropriate rights within 150 calendar days of the date this decision is issued, unless the matter
is otherwise resolved prior to that time. If Complainant requests a final decision without a
hearing, the Agency shall issue a final decision within 60 days of receipt of Complainant’s
request.
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A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced herein.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he/she 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 this decision becoming final. 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 (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. 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.

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
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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. 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 14, 2016
Date