Trey H.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 29, 20160520160048 (E.E.O.C. Jan. 29, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trey H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Request No. 0520160048 Appeal No. 0120140354 Agency No. 200L-0629-2006100133 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested reconsideration of the decision in EEOC Appeal No. 0120140354 (October 2, 2015). 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). In a previous decision, the Commission affirmed the Agency’s final determination that it had not breached a settlement agreement fully executed on November 9, 2005. Specifically, the Commission noted that in his prior appeal, Complainant submitted numerous statements claiming that he was “blacklisted” and fired while out on workers’ compensation, denied attorney’s fees and wrongfully advised to withdraw his tort claim because he had two OFO appeals pending, which he referenced as EEOC Appeal Nos. 01A52529 and 01A54044. The prior Commission decision found that the settlement agreement at issue was valid and binding on both parties. The Commission found that Complainant’s breach claim pertained only to an incident that occurred on September 20, 2005, which was before the final 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. 0520160048 2 was executed on November 9, 2005. The Commission found that the Agency could not have breached the agreement by its actions on September 20, 2005, because the agreement was not yet executed. The Commission also noted that the September 20, 2005 incident that formed the basis for Complainant’s breach claim was processed as a separate complaint under Agency No. 200L- 0629-2006100133 based on an alleged action occurring subsequent to Complainant’s signing of the agreement. The Commission noted that the settlement agreement did not include within its scope Agency No. 200L-0629-2006100133. The prior Commission decision also found the record did not show that the Agency failed to purge Complainant’s Official Personnel File (OPF) record. Specifically, the Commission determined Complainant did not identify any records which should have been purged, but were not purged. In addition, in the prior decision the Commission determined the Agency did not breach the provision regarding cooperation. The Commission noted that paragraph pertained to cooperation with regard to carrying out the agreement as it related to the complaints identified in the agreement. Finally, the prior decision found Complainant did not show that he was “fired,” because he resigned his position and his resignation was noted in the agreement that he signed. The Commission noted that under the agreement, Complainant voluntarily agreed not to seek future employment with the Agency. The Commission found that there was no evidence that the Agency breached the agreement when it did not offer Complainant placement services on September 20, 2005. In his present request for reconsideration, Complainant claims he was coerced into entering into the agreement because he states that if he did not enter into the settlement agreement he would have been fired. It was the proposed termination that he settled, so there can be no coercion settling the very matter for which Complainant claims coercion. Upon review, we find the Commission’s prior decision properly found that the settlement agreement was valid and binding on both parties. Complainant also argues in his request for reconsideration that he was fired. We note Complainant raised the same argument in his initial appeal, which the Commission previously addressed. We incorporate the Commission’s prior finding that Complainant resigned his position and his resignation was noted in the settlement agreement which Complainant signed. Moreover, we have reviewed all the documentation Complainant sent in in support of his request for reconsideration and we find the Commission’s prior decision properly found no evidence of "firing.” Finally, we note in his request for reconsideration Complainant does not address the Commission’s prior decision regarding the provision of the agreement regarding cooperation, 0520160048 3 purging his OPF record, or the Commission’s decision regarding the September 20, 2005 incident. However, we note that although these claims were not raised in Complainant’s request for reconsideration, we find that the prior decision properly found that the Agency did not breach the settlement agreement regarding those claims. Accordingly, our determination that the Agency was not in breach of the settlement agreement was not in error. 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. 0120140354 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. 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 January 29, 2016 Date Copy with citationCopy as parenthetical citation