Kip D.,1 Complainant,v.Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Sep 10, 2020

2020002661 (E.E.O.C. Sep. 10, 2020)

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

Kip D.,1
Complainant,

v.

Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.

Request No. 2020002661

Appeal No. 2020000544

Agency No. 9H1C1741154T

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 2020000544 (January 24, 2020). 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).

On February 16, 2018, Complainant and the Agency entered into a settlement agreement that
provided, in pertinent part, that the Agency would “provide one month’s advance notice prior to
requiring Complainant to go [on a Temporary Duty Assignment (TDY)] outside the local area in
relation to his normal audit duties.” Complainant subsequently alleged that the Agency violated
the agreement because, during the settlement discussion, “it was agreed that I would get at least
30 days’ notice for the annual training and TDYs and the TDYs were restricted to the local area.”
Complainant further maintained that he relied “heavily” upon a statement that management would
do better than the 30 days’ notice mandated by the 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.
2020002661

2
The Agency found that there was no violation of the agreement. Thereafter, Complainant filed an
appeal to the Commission. The Commission’s previous decision affirmed the Agency’s
determination. Specifically, the previous decision found that Complainant, with respect to an
August 19, 2019 TDY assignment, was notified on June 18, 2019, which complied with the
agreement. Moreover, the previous decision found that if Complainant had wanted the Auditor
General to include two months’ notice instead of one month’s notice, and “fully funded” TDY
language, he should have included those matters as part of the settlement agreement.

In his request for reconsideration, Complainant argued that the previous decision involved a clearly
erroneous interpretation of material fact. According to Complainant, the real issue is what
constitutes a valid 30-day notice. Complainant argues that because the issue of funding was not
addressed until August 6, 2019, he was not provided with 30 days’ notice. Finally, Complainant
maintains that documentation that he provided on appeal was either not received or considered,
presumably because the previous decision found in favor of the Agency.

We remind Complainant 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). A reconsideration request is an opportunity to demonstrate that the
previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will
have a substantial impact on the policies, practices, or operations of the Agency. Complainant has
not established either criteria here. The Commission has long held that merely rearguing the facts
of a case is improper in a request for reconsideration. Bartlomain v. U.S. Postal Serv., EEOC
Request No. 05910436 (Oct. 10, 1991).

Because Complainant has not put forth any arguments which the Commission finds to be material
to the outcome of the underlying decision, or that were not previously considered in rendering the
underlying decision, we find Complainant has not met the criteria for reconsideration.
Complainant’s rebuttal documents were received and considered by the previous decision;
however, it correctly determined that funding was not a part of the parties agreement. As was
noted in the previous decision, in interpreting the parties intent, we utilize the plain meaning rule.
Accordingly, we find that the only issue is whether Complainant was given 30 days’ notice of the
impending TDY assignment. Like the previous decision, we find that he was. How the TDY
assignment would be funded is an ancillary matter unrelated to the terms of the 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. The decision in EEOC Appeal No. 2020000544 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

2020002661

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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

September 10, 2020
Date