Complainantv.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 25, 2014
0520130607 (E.E.O.C. Apr. 25, 2014)

0520130607

04-25-2014

Complainant v. John M. McHugh, Secretary, Department of the Army, Agency.


Complainant

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Request No. 0520130607

Appeal No. 0120130299

Hearing No. 410-2011-00331X

Agency No. ARUSAR10MAY02268

DENIAL

The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120130299 (March 28, 2013). 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).

Complainant and the Agency entered into a May 17, 2012, settlement agreement resolving Complainant's EEO complaint alleging discrimination based on race, color, sex, disability, and reprisal. The agreement provided, in relevant part, that the Agency would raise Complainant's performance rating and award her benefits and back pay derived from the higher rating, detail Complainant to the 368th ENG DET, restore 240 hours of annual leave to Complainant, and restore five days of pay lost due to a suspension. Alleging that the Agency failed to comply with the terms of the settlement agreement, Complainant filed an appeal with this Commission.

On appeal, Complainant stated that she notified the Agency of the breach allegation on August 3 and August 27, 2012, and that the Agency failed to respond to her allegation. The Agency submitted an August 17, 2012, memorandum setting forth its determination that it complied with the agreement. In the interest of judicial economy and expediency, we treated the memorandum as the Agency decision and accepted the appeal.

In our previous decision, we affirmed the Agency's determination that it complied with the settlement agreement's provisions regarding back pay, the detail to the 368th ENG DET, and payment for the suspension. With respect to the restoration of leave, we noted that the Agency acknowledged that it caused 120 hours of leave from Complainant's prior balance to be forfeited when it restored 240 hours of leave. The Agency stated that it issued a correction memorandum on June 12, 2012, and that 120 hours of leave would be restored in August 2012. We found, however, that there was no evidence that the leave had been restored. Accordingly, we remanded the leave matter to the Agency for a supplemental investigation. We ordered the Agency to supplement the record with documentary evidence indicating whether it had complied with the leave-restoration provision of the settlement agreement and to issue a new decision, with appeal rights, on the matter.

In its request for reconsideration, the Agency states that, in January 2013, it placed 120 hours of leave in Complainant's restored leave account. The Agency attaches an April 30, 2013, affidavit in which a Civilian Pay Lead Technician from the Defense Finance Accounting Service states that 120 hours of leave was placed in Complainant's restored leave account for the pay period ending January 28, 2013. The Agency also attaches three Master Leave History screen printouts, including an April 29, 2013, document indicating that Complainant has a balance of 120 hours of restored annual leave.1

Complainant did not file a response to the Agency's request.

We remind the Agency 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous 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. The Agency has not done so here.

As we noted in the previous decision, the appellate record contained no evidence that the annual leave had been restored. Thus, we correctly remanded the matter regarding the restoration of leave to the Agency.

In its request for reconsideration, the Agency submits documents that appear to indicate that the Agency restored leave to Complainant in January 2013, while Complainant's appeal was pending. To the extent that the Agency is attempting to argue that the documents constitute new evidence that was not previously available, we decline to reconsider the previous decision. Rather than request reconsideration, the Agency should have complied with the previous decision's order and supplemented the record, issued a final decision with appeal rights, and submitted a report of compliance.

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. 0120130299 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.

ORDER

Within thirty (30) calendar days from the date this decision becomes final, the Agency shall:

(1) supplement the record with documentary evidence clearly indicating whether it has complied with provision (3)(e) of the settlement agreement; and

(2) issue a new decision, with appeal rights to the Commission, regarding whether it has complied with provision (3)(e) of the settlement agreement.

The Agency shall submit a report of compliance, in accordance with the provision below entitled "Implementation of the Commission's Decision."

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

April 25, 2014

Date

1 The other two printouts are only partially legible, apparently because of a computer scanning error.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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