Stacie D.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jun 14, 2018

0520180217 (E.E.O.C. Jun. 14, 2018)

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

Stacie D.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Request No. 0520180217

Appeal No. 0120170334

Agency No. RD-2009-00425

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120170334 (December 28, 2017).
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 record reflects that on January 31, 2013, Complainant and the Agency entered into a settlement
agreement of an EEO matter. The settlement agreement was subsequently amended by an
addendum, dated March 5, 2014. The settlement agreement, as amended, provided in pertinent
part, that:

1. The Agency agrees to pay Complainant $3,000.00 (Three Thousand Dollars) in
satisfaction of her potential claim against the Agency for noncompliance with the
original Settlement 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.
0520180217

2
2. The Agency agrees to retroactively award Complainant a promotion from her position
of Area Technician, GS-1101-07, step 8, to Area Specialist, GS-1165-9, step 3, with an
effective date of November 9, 2008. Complainant will be paid back pay and the value
of foregone benefits, representing the difference in value between the compensation
package for grade 7, step 8, and grade 9, step 3(or higher) for the period of time between
November 9, 2008, and her retirement date of December 2, 2011;

3. The Agency will replace Complainant’s form SF-50, dated December 2, 2011, showing
her as having retired from the position of Area Technician…as having retired from the
positon of Area Technician, GS-1165-9;

4. It is the overall intent of the preceding paragraphs to see to it that Complainant is made
whole and received the full amount of money, both retroactively, in the present, and in
the future, that would have been due her had she been promoted to Area Specialist, GS-
1165-9, step 3, with an effective date of November 9, 2008; and

The Complainant agrees to:

1. Accept the payments specified by the Agency above in full satisfaction of her claims
for compensatory and other damages in this case…They are also accepted in
satisfaction of any claims for pecuniary loss that may occur in the future, including
front pay for lost promotions; and per the addendum;

Accept the payment specified by the Agency above in full satisfaction of her potential
claim for noncompliance with the original Settlement Agreement, based on the
Agency’s failure to ensure that she would receive back pay, retirement pay, and other
compensation based on a promotion to Area Specialist, GS-1165-9, step 4, with an
effective date of November 9, 2008, rather than a promotion to Area Specialist, GS-
1165-9, step 3, with an effective date of November 9, 2008;

2. Not request reinstatement of her complaint and / or appeal…based on the Agency’s
failure to ensure that she would receive back pay, retirement pay, and other
compensation for noncompliance with the original Settlement Agreement.

By letter dated January 25, 2016, Complainant notified the Agency that it had breached the
settlement agreement. According to Complainant, the Agency failed to start her off as a GS-9,
Step 4 and she claimed that she should have received a higher step based on her salary at the time
of the agreement.

The Agency determined that it complied with the settlement agreement. The Agency
acknowledged that an error had been committed by the Office of Human Resources and it had not
strictly complied with Section 3 of the addendum which required the Agency to carry out all
obligations within 90 days of March 5, 2014. The Agency stated that it cured the breach after
being notified of the breach claims.
0520180217

3
In our previous decision, we found that Complainant failed to show that the Agency breached the
settlement agreement. We stated that to the extent the Agency breached the agreement, its actions
following receipt of the breach claims cured the breach. We noted that the Agency had
retroactively promoted Complainant to a GS-9, Step 3, effective November 9, 2008. Additionally,
we noted that the Agency recognized Complainant for two within-grade adjustments to GS-9, step
4 on November 8, 2009, and to GS-9, step 5 on November 6, 2011. We further observed that the
Agency recognized Complainant was entitled to a retroactive adjustment, plus interest. We stated
that the Agency submitted a Payroll Action Request dated July 19, 2013, to cover the adjustment
period from November 9, 2008 to December 2, 2011 for the pay period 24/11. We noted that
Complainant received a check for $8,486.62 on July 30, 2013.

In her request for reconsideration, Complainant states that she did not receive all of her back pay,
annual leave, and gross retirement benefits within 90 days.

In response, the Agency asserts that it substantially complied with the terms of the settlement
agreement and as of January 12, 2016, it is in full compliance with the agreement. The Agency
states that Complainant has received the promotion and all payments currently owed to her. The
Agency asserts that all corrections to Complainant’s annuity due under the settlement agreement
and addendum are complete.

We observe that Complainant has not presented sufficient persuasive evidence in support of her
request for reconsideration. As we stated in our prior decision, the Agency cured whatever breach
of the settlement agreement occurred. 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. Complainant 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. 0120170334 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
0520180217

4
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.

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

June 14, 2018
Date