Lois G.,1 Complainant,v.Scott Pruitt, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Mar 17, 2017

0520170101 (E.E.O.C. Mar. 17, 2017)

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

Lois G.,1
Complainant,

v.

Scott Pruitt,
Administrator,
Environmental Protection Agency,
Agency.

Request No. 0520170101

Appeal No. 0120161947

Agency No. 20080009R06

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested reconsideration of the decision in EEOC Appeal No. 0120161947
(October 28, 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 her underlying complaint, Complainant alleged the Agency breached a December 8, 2009
settlement agreement into which the parties entered. On December 7, 2015, Complainant filed
an EEO complaint alleging she was being subjected to discrimination and unlawful retaliation
when the Agency utilized its Performance Appraisal and Recognition System against her, and
on October 15, 2015, she was threatened with being fired. Complainant also alleged that these
same matters were a breach of the December 8, 2009 settlement agreement.

On February 19, 2016, the Agency issued a decision, solely addressing the breach claim. The
Agency determined the provision at issue was unenforceable as it promised to do no more than
it was legally obligated to do anyway. However, the Agency notified Complainant that it was

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.
0520170101

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processing her allegations as a separate EEO complaint, identified as Agency No. 2016-0020-
R06. The Agency indicated it would issue a separate final decision on that complaint.

In our prior decision, the Commission found a claim of subsequent discrimination or retaliation
in violation of a settlement agreement’s anti-discrimination/retaliation clause was to be
processed as a separate complaint, rather than as a breach of the settlement agreement. The
Commission noted that the Agency was correctly processing Complainant’s claims as a
separate complaint. The Commission stated that concerns relating to those claims should be
addressed within that complaint.

In her request for reconsideration, Complainant claimed that the Commission’s decision on her
breach claim prejudiced the outcome of her subsequent complaint of discrimination.
Specifically, she argued that the Commission’s breach decision affirmed the Agency’s finding
of no discrimination and would result in injustice in the adjudication of the claims raised in her
separate complaint.

Upon review, we find that neither the Agency’s final decision nor the Commission’s previous
decision constituted a finding of no discrimination on the claims raised in her subsequent
complaint. Rather, both decisions addressed only Complainant’s claim of breach of settlement
agreement and did not reach the merits of her subsequent complaint alleging discrimination and
retaliation. The record reveals that at the time the Commission’s prior decision was issued, the
Agency was properly processing Complainant’s subsequent complaint. We note that the
underlying settlement agreement contained consideration such as the payment of attorney’s
fees.

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. 0120161947 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.

0520170101

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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 17, 2017
Date