Romaine H.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 28, 2018

0520180436 (E.E.O.C. Sep. 28, 2018)

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

Romaine H.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Request No. 0520180436

Appeal No. 0120180970

Agency No. BOP-2017-0672

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180970 (May 2, 2018). 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).

In the underlying matter, Complainant alleged that the Agency breached a settlement agreement
entered into by the parties on August 24, 2017. That agreement, in relevant part, provided:

2.1 60 hours of annual leave will be added to [Complainant’s] Time and Attendance to
be completed by the end of pay period 19.

2.2 60 hours of sick leave will be added to [Complainant’s] Time and Attendance to be
completed by the end of pay period 19.

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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2.3 FMC Carswell Warden will submit the student loan repayment memorandum for
[Complainant] during the next open enrollment time period after August 24, 2017
in accordance with BOP PS3530.02. [Complainant] will be notified in writing by
[the Human Resources Manager (“HRM”)] of the date that the loan repayment
memorandum is submitted.... If the repayment agreement is approved and all
eligibility requirements as specified in PS3530.02 are met, before the student loan
repayment may be paid, [Complainant] must sign a student loan agreement... If the
student loan repayment is approved, and three years after such approval, in order to
extend repayments beyond the 36 months, [Complainant] must sign another
Student Loan Repayment Agreement ...in accordance with PS3530.02.

2.4 FMC Carswell Warden will submit the request for a special rate table to the South
Central Regional Director for the Respiratory Therapist (“RT”) position by October
31, 2017 to reflect comparable private sector RT positions in the DFW area.

In its decision on the claim of breach, dated January 4, 2018, the Agency found that it had not
breached the settlement agreement. On appeal the Commission determined that the Agency had
substantially performed its obligations under all the provisions of the settlement agreement with
the exception of paragraph 2.3. The matter was remanded for further proceedings with respect to
paragraph 2.3 and affirmed in all other respects.

In her request for reconsideration, Complainant argues that the determination in the previous
decision that the Agency had not breached paragraph 2.4 was in error. In support of her position
Complainant reiterates the arguments she raised on appeal. We find that Complainant’s arguments
do not 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. Accordingly, we find that Complainant has failed to demonstrate that the Commission
should reconsider its appellate decision.

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. 0120180970 remains the Commission’s
decision. There is no further right of administrative appeal on the decision of the Commission on
this request. The Agency is required to comply with the Order set forth in EEOC Appeal No.
0120180970.

ORDER

1. Student Loan Repayment Request - within 30 calendar days of the date of this
Decision, if it has not done so already, appropriate Agency officials shall, with
Complainant’s cooperation, resubmit her loan repayment request, ensuring that proper
documentation is provided that specifically addresses the eligibility concerns in the
February 22, 2018 denial of repayment.
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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).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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). 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.

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.

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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

September 28, 2018
Date