Lloyd E.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 8, 2019

2019000504 (E.E.O.C. Mar. 8, 2019)

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

Lloyd E.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Request Nos. 2019000504; 2019000505

Appeal Nos. 0120172470; 0120181577

Agency No. ARTYAD15MAR00987; ARTYAD15DEC04850

Hearing Nos. 530-2016-00048X; 530-2016-00394X

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in consolidated EEOC Appeal Nos. 0120172470 and
0120181577 (Aug. 7, 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). The Commission exercises its discretion and consolidates the above-referenced
reconsideration requests.

At the time of events giving rise to the underlying complaints, Complainant worked as an IT
Specialist at the Agency’s Customer Support Division facility in Tobyhanna, Pennsylvania.

Complainant filed two formal EEO complaints. Following investigations, Complainant requested
hearings before an EEOC Administrative Judge (AJ). The complaints were consolidated.

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.
2019000504 & 2019000505

2
On May 23, 2017, Complainant and the Agency entered into a settlement agreement to settle the
matters. The settlement agreement provided, in pertinent part, that the Agency would forward the
necessary documents to:

a) (1) Expunge the five (5) day suspension from the Complainant’s Electronic Official
Personnel File (e-OPF), Civilian Personnel Online (CPOL), Defense Civilian Personnel
Data System (DCPDS), AUTONOA, and submit the necessary paperwork to DFAS to
refund the five (5) days of pay for that period, subject to federal, state, and local taxes;

(2) Remove the word “minimum” from the Senior Rater Comments of the Complainant’s
[December 16, 2015] Civilian Evaluation Report in his e-OPF, CPOL, DCPDS, and
AUTONOA;

(3) Change Complainant’s [December 14, 2016] Civilian Evaluation Report in his e-OPF,
CPOL, DCPDS, and AUTONOA;

(4) Process the payment of $13,000.00 through DFAS to reimburse Complainant for
attorney’s fees. This amount is not subject to federal, state, or local withholding taxes as
it is reimbursement for attorney’s fees only and not an award for damages;

b) No later than 60 days from the date of the execution of this agreement, the Agency will
provide the Information Management Division one hour of diversity training;

c) Within ten (10) days of the execution of this agreement, the Agency will reissue
Complainant a request for medical documentation detailing the specific information
necessary with regard to Complainant’s Reasonable Accommodation request, including
any specific office or ergonomic needs;

d) No later than two pay periods after the signing of this Agreement, Complainant will be
detailed for 120 days into an IT Specialist, GS-2210-09 position to work Host Base
Security Systems (HBSS), LAN drops, and cyber security issues at the GS-09 level
(excluding patching of workstations). Complainant will also report directly to the Chief,
Information Management Division;

e) No later than 120 days from the execution of this Agreement, Complainant will provide
the Agency with the medical documentation requested in paragraph 1(c) above; and

f) Upon the Complainant providing satisfactory medical documentation that Complainant can
perform the essential functions for the position stated in paragraph (b), Complainant will
be permanently reassigned into this position. Complainant will continue to report directly
to the Chief, Information Management Division.

2019000504 & 2019000505

3
On July 11, 2017, Complainant filed an appeal (EEOC Appeal No. 0120172470) with the
Commission alleging that the settlement agreement should be set aside, and his complaints be
reinstated. Complainant argued that the settlement agreement lacked consideration and the
agreement was void because he was under duress when he signed the agreement. Complainant
also alleged that an improper official signed the settlement agreement. The Agency received the
appeal and issued a final decision in which it determined that it had complied with the settlement
agreement and that there was no basis to void the agreement.

Subsequently, Complainant alleged that the Agency had breached the settlement agreement by
issuing him an Internal Revenue Service (IRS) Form 1099 to report the payment in violation of
provision (4). The Agency issued a second final decision finding that it noted on Form 1099 that
the payment was for attorney’s fees so that Complainant would not incur any tax consequences.
Therefore, the Agency concluded that it had not breached the settlement agreement. Complainant
appealed (EEOC Appeal No. 0120181577) restating his claim that the settlement agreement was
void and that the Agency breached the agreement.

The Commission consolidated the two appeals for one decision. With respect to EEOC Appeal
No. 0120172470, the Commission found no evidence to void the settlement agreement based on
Complainant’s contentions of coercion or that an improper official signed it. As to EEOC Appeal
No. 0120181577, the Commission concluded that determinations regarding tax consequences were
outside of our jurisdiction and should be raised with the IRS. Accordingly, the Commission
affirmed the Agency’s decisions finding no breach of the settlement agreement.

In his request for reconsideration, Complainant expresses his disagreement with the appellate
decision and reiterates many arguments previously made on appeal. Complainant further adds that
the Commission ignored case law with respect to consideration and tax consequences. 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. We discern no persuasive argument or evidence in Complainant’s requests
for reconsideration that satisfy the criteria for granting the requests to reconsider.

After reviewing the previous decisions and the entire record, the Commission finds that the
requests fail to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to DENY the requests. The decision in EEOC Appeal Nos. 0120172470 and
0120181577 remains the Commission's decision. There is no further right of administrative appeal
on the decision of the Commission on these requests.

2019000504 & 2019000505

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

March 08, 2019
Date