Darrin F.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jul 13, 2016

0520160280 (E.E.O.C. Jul. 13, 2016)

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

Darrin F.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Request No. 0520160280

Appeal No. 0120143009

Agency No. DOSF12612

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0120143009
(March 18, 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).

In the underlying matter, Complainant alleged the Agency breached a settlement agreement
into which the parties entered. The settlement agreement provided in pertinent part:

(9f) If the Complainant is not promoted by the 2013 Foreign Service Selection
Board, the Department (through HR/PE) will institute a Reconstituted Board to
meet by December 31, 2013, to review the Complainant's file, once his 2012
EER has been expunged and replaced with a gap memorandum, and an EER
including his performance during the Pearson Program and Congressional
Fellowship for the period March 15, 2013, through October 31, 2013, has been
added to his personnel file.

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.
0520160280

2

(9g) The Department will permit the Complainant to request the recusal of the
following individuals from his future Foreign Service Selection Boards,
including the Reconstituted Board referenced in Term 9f. [We have omitted the
names of five individuals named in the settlement agreement]. Complainant
must follow all applicable Department procedures and deadlines for recusal.

In our prior decision, the Commission reversed the Agency's finding that it did not breach the
terms of the settlement agreement and remanded the matter to the Agency for further
processing. Specifically, the Commission found the record showed the Reconstituted Board
consisted of two portions, a classwide and a “conal” review and that the Agency delayed three
months in instituting the classwide review and to date had not conducted a conal review. The
Commission noted the Agency’s final decision failed to address the fact that no conal review
was conducted and that the Agency had not submitted a response brief challenging
Complainant’s claims. The Commission stated that on remand, Complainant would be given
the option of returning the benefits conferred pursuant to the agreement and reinstating the
complaint, or keeping the benefits conferred pursuant to the agreement and having the
agreement specifically enforced. The Order stated that if Complainant elects not to return to
the status quo ante, i.e., not return any consideration owing the Agency, the Agency shall
specifically enforce the agreement, unless the Agency can show it has already complied with
the settlement agreement by convening a conal panel review.

In its request for reconsideration, the Agency states a conal panel was convened on April 29,
2014. The Agency provides April 29, 2014 Board Reports from all panel members. These
reports reflect the Reconstituted Selection Boards convened and reviewed the performance
folders of Complainant and he was ranked eighth out of eight and was not recommended for
promotion. In addition, the Agency argues Complainant failed to meet his obligation to
provide timely recusal requests for the conal panel members and made untimely objections to
several members on appeal.

In his brief in opposition to the Agency’s request for reconsideration, Complainant argues the
Agency failed to explain why it did not file a timely opposition to his initial appellate brief.
Complainant states that the Commission properly interpreted the material facts it had at the
time of the appeal. Complainant states that he never saw the documents the Agency attached
to its request for reconsideration until the Agency filed the request, and he notes the Agency
provides no proof that these documents were ever submitted to him.

Complainant reiterates that the Agency was obligated to convene a Reconstituted Board by
December 31, 2013, an obligation he notes that the Agency has conceded it failed to meet.
Further, Complainant states that in addition to its failure to timely convene a Reconstituted
Board, the Agency failed to provide him with a two-part Reconstituted Board (classwide and
conal) pursuant to its policies and regulations. Specifically, Complainant claims that in
accordance with the SOP for Reconstituted Foreign Service Selection and Management Boards,
“individuals who served as Members of the original Selection Board will not be selected.”
0520160280

3
However, Complainant states Person A, a member of Complainant’s original conal Board in
2012, was selected for service on a Reconstituted conal board. Complainant also notes the
Agency proposed Foreign Service Officer B, who had knowledge of the events surrounding
Complainant’s EEO complaint and was therefore biased. Complainant claims the Agency
failed to provide him with a proper two-part Reconstituted Board and tainted the entire process
by proposing biased members for the conal panel. Thus, Complainant argues that a
Reconstituted Board, as defined by the Agency’s policies and procedures, was never convened.

Finally, Complainant argues that the Agency provided him four calendar days and only two
business days to review the composition of the conal panel, notifying him of its proposed
members on April 24, 2014, and requiring him to respond by close of business on April 28,
2014. Complainant claims the Agency’s standard practice was to grant ten days’ notice of
Board composition. Complainant also claims that both he and his attorney notified the Agency
that it was in breach of its agreement in reference to the convening of the Reconstituted Board
on April 28, 2014. Complainant states at this time, he and his attorney objected to the
proposed members of the conal review panel. Complainant states those objections were
followed up by Complainant’s counsel on May 6, 2014, with both a telephone call and an
electronic mail message. Complainant argues the Agency failed to provide him with any
meaningful opportunity to request recusal of its members, in violation of the settlement
agreement and the AFSA-State Agreement.

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. We note Complainant did not file a request for
reconsideration of the Commission’s decision and does not request his prior complaint be
reinstated. Upon review of the record, we note that at the time the Commission issued its
prior decision it was unaware that the Agency had convened a conal panel on April 29, 2014.
Based on the information provided in support of the Agency’s request for reconsideration, we
find the Agency has complied with the Order listed in our prior decision. Thus, we do not
reiterate our prior Order. The decision in EEOC Appeal No. 0120143009 as modified remains
the Commission's decision. There is no further right of administrative appeal on the decision
of the Commission on this request.

We note that despite the Agency providing evidence that it convened a conal panel on April 29,
2014, Complainant contends that the Agency has breached the subject settlement agreement by
failing to provide a fully compliant conal review panel in accordance with Agency policies and
procedures. We do not address in this decision whether the conal panel convened on April 29,
2014, complied with the terms of the subject settlement agreement. To the extent Complainant
wants to pursue a claim that the Agency breached the settlement agreement with regard to the
April 29, 2014 conal panel, he should file a new breach claim with the Agency.
0520160280

4

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

July 13, 2016
Date