[Redacted], Barry G., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 7, 2022

Appeal No. 2020003268 (E.E.O.C. Dec. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barry G.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Request No. 2022000356 Appeal No. 2020003268 Hearing No. 570-2018-00017X Agency No. 16-68910-02860 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003268 (September 27, 2021). For the reasons that follow, the Commission DENIES the Agency’s request for reconsideration for failure to meet the regulatory criteria. BACKGROUND During the time of events giving rise to his complaint, Complainant worked for the Agency as a GS-0986-10 Supervisory Legal Technician in the Naval Litigation Office at the Navy Yard in Washington, D.C. On November 7, 2016, Complainant filed an EEO complaint, which he subsequently amended, alleging that the Agency discriminated against him based on sex (male) and in reprisal for prior protected EEO activity when: 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. 2 2022000356 A. Since December 15, 2015, to November 15, 2016, he was subjected to a hostile work environment by his first-line supervisor (S1), Special Counsel for the Naval Litigation Office, including when: 1. On September 16, 2016, his supervisor sent him an email directing him not to speak to another employee’s attorney in regard to an EEO complaint until further notice; 2. From December 15, 2015, to August 24, 2016, he was subjected to nine enumerated instances of harassment, including scrutiny of his travel expenses, delayed reimbursement for his travel card, not receiving a response to his request for reassignment, detailed to another position without receiving performance standards for the position, removal from his supervisory position, lack of guidance, offensive comments, and overlooking his concerns; and B. On November 15, 2016, Complainant became aware that S1, who was also the hiring official, did not select him for the GS-13/14 Litigation Support Manager position advertised under vacancy announcement #MIOC 0301-14-12396. After the investigation, Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for summary judgment and issued a decision without a hearing in the Agency’s favor. The Agency’s final order adopted the AJ’s decision finding no discrimination. In EEOC Appeal No. 2020003268, we found that the AJ properly issued a decision without a hearing. We modified the Agency’s final order, finding that Complainant established that he was subjected to discrimination based on reprisal as alleged in claim (A)(1) but affirming the finding of no discrimination on the remaining claims. Regarding claim (A)(1), the appellate decision found that Complainant established a prima facie case of retaliation because S1 was aware that Complainant was named as a witness in a coworker’s EEO complaint and S1 emailed employees who were identified as witnesses and informed them they should not speak with the coworker’s attorney, preventing Complainant from communicating with the attorney to discuss the coworker’s EEO matter for at least one week. Although the AJ found that Complainant did not establish that S1’s direction not to speak to the coworker’s attorney was unlawfully motivated, we noted that the record included an email from S1, informing Complainant he had been identified as a potential witness and directing him to refrain from speaking with the coworker’s attorney until the attorney formally advised the Agency that he was representing the coworker. Although S1 stated that he sent the email because Agency policy dictated that Agency employees shall not provide “factual official information” without appropriate authority, S1’s testimony was inconsistent with the Agency policy, which explicitly stated that it did not apply to the release of official information or testimony by Agency employees in administrative proceedings, including EEO proceedings. 3 2022000356 Moreover, S1 failed to identify who advised him to send the email, and there was no evidence that supported his assertion, so we determined that Complainant established that the Agency’s legitimate, nondiscriminatory reason was unworthy of credence and therefore pretext for discrimination based on reprisal. We ordered the Agency to conduct a supplemental investigation concerning Complainant’s entitlement to compensatory damages, to provide EEO training to and consider taking appropriate disciplinary action against S1, and to post a notice. The instant request for reconsideration followed. On request for reconsideration, the Agency notes that, on June 29, 2020, the parties entered into a settlement agreement to resolve a separate EEO complaint. According to the Agency, pursuant to paragraph 9 of the settlement agreement, Complainant agreed to withdraw any complaint or charge against the Agency predating the settlement agreement. The Agency argues that Complainant knew he had a pending appeal when he signed the settlement agreement and was therefore obligated to withdraw EEOC Appeal No. 2020003268, which he did not do. The Agency asserts that Complainant’s failure to withdraw his appeal resulted in a clearly erroneous appellate decision finding reprisal and ordering the Agency to conduct a supplemental investigation on compensatory damages when Complainant had already waived any claim to damages, costs, and attorney’s fees. The Agency further contends that failure to reconsider the appellate decision will have a substantial impact on the practices or operations of the Agency because the Agency must be able to rely on the Commission to uphold and enforce settlement agreements so it can receive the benefit of negotiated terms. According to the Agency, failure to uphold the terms of the settlement agreement would substantially affect Agency operations and practices because it would force the Agency to claim breach of the settlement agreement and the Agency would be less inclined to enter into EEO settlement agreements, resulting in more litigation. The Agency states that Complainant not only failed to withdraw his appeal but also failed to disclose the existence of the settlement agreement. The Agency notes that Complainant was represented by two different attorneys from different law firms on appeal and in the negotiation of the settlement agreement, asserting that this “implies some gamesmanship” on Complainant’s part and requesting that the Commission reconsider the appellate decision on its own motion so Complainant is not “rewarded for his lack of candor or innocent oversight in his dealings with OFO.” ANALYSIS AND FINDINGS 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 request for reconsideration, the Agency asserts that its June 29, 2020, settlement agreement with Complainant resolved the EEO complaint at issue in our appellate decision, Agency No. 16- 68910-02860. 4 2022000356 Upon review, we find that the settlement agreement does not explicitly reference the appellate matter, nor does the EEO complaint referenced in the settlement agreement appear to be related to the appellate matter. The settlement agreement states, in relevant part: 2. The Agency and Complainant hereby enter into this Settlement Agreement in full and final settlement of Complainant’s claims, complaints, and allegations against the Agency contained in or related to his formal EEO complaint, case number DON 20-31851-01320. 3. The parties represent that they understand and have thoroughly discussed all aspects of this Settlement Agreement, which represents the entire agreement between the Parties and a complete and exhaustive statement of the terms thereof. The Parties agree that neither Party is bound by any representation, promise, or inducement not set forth in this Settlement Agreement. . . . What the Complainant Agrees to Do: 9. Hereby withdraw his formal EEO complaint, case number DON 20-31851- 01320, effective on date this agreement has been signed by all Parties. The Complainant agrees not to institute any charges, complaints, grievances, or other actions against the Agency, or any of its current or former officials, agents or employees, whether in their individual or official capacity, arising from facts or events associated with Complainant’s employment with the Agency occurring before the effective date of this Settlement Agreement, either under Federal or State statue [sic], or the Constitution of the United States or of a State, in either a Federal or State court or administrative forums (including, but not limited to, the Equal Employment Opportunity Commission and the Merit Systems Protection Board). If any agency, representative, or court assumes jurisdiction of any complaint or charge against the Agency, its employees or anyone connected with the Department of the Navy, regarding any matter to the Complainant’s employment with the Department of the Navy before the effective date of this Settlement Agreement, the Complainant will request such agency, representative, or court to withdraw from the matter. 10. Expressly waive any and all claims for back pay, interest, attorney fees, or any other expenses incurred in connection with filing, processing, and resolving this complaint. The Complainant irrevocably and unconditionally releases the Secretary of the Navy, the Department of the Navy, its employees, and all persons connected with the Department of the Navy, from any and all charges, complaints, liabilities, damages, suits, costs, debts, and expenses which the Complainant had in the past, now has currently, or will have in the future, including attorney fees and costs 5 2022000356 actually incurred related to his employment with the Department of the Navy, arising from events or facts occurring before the effective date of this Settlement Agreement. Agency’s Request for Reconsideration (RFR) Ex. 1 at 1-2. Based on the plain language, the parties agreed the settlement agreement was a settlement of Complainant’s claims, complaints, and allegations contained in or related to his EEO complaint, Agency No. 20-31851-01320. In term (9), Complainant agreed to withdraw Agency No. 20-31851-01320, but no other EEO complaints are listed. Although there is language about Complainant agreeing not to initiate other EEO complaints, Complainant had already filed Agency No. 16-68910-02860. Similarly, although term (9) states that, if a court or administrative agency assumed jurisdiction of such a matter that Complainant will request to withdraw, the Commission had already assumed jurisdiction of Appeal No. 2020003268. In term (10), Complainant agreed to waive “any and all claims for back pay, interest, attorney fees, or any other expenses incurred in connection with filing, processing, and resolving this complaint,” Agency No. 20-31851-01320. The next sentence states that Complainant unconditionally releases the Agency from any and all charges, complaints, liabilities, damages, suits, costs, debts, and expenses related to his employment with the Agency, arising from events or facts occurring before the effective date of the settlement agreement, but it does not clearly state that the settlement agreement applied to Agency No. 16-68910-02860 or that it was a global settlement. If the Agency intended to settle Agency No. 16-68910-02860 or enter into a global settlement, such language should have been included in the settlement agreement. Additionally, one of the Agency’s exhibits on request for reconsideration suggests that the Agency representative did not think that the settlement agreement applied to the appellate matter. On September 29, 2021, two days after the Commission issued the appellate decision, an Agency attorney emailed another Agency attorney, stating, “I am the agency representative handling [Complainant’s] EEO COMPLAINT from 2015-2016. It is my understanding that you settled his most current EEO complaint. Can you please provide me the name of the attorney that represented him for the proposed removal and settlement?” RFR Ex. 3. The Agency representative’s statements seem to reflect that she considered the matters separate and that the settlement reached by the other Agency representative pertained to Complainant’s more recent EEO complaint.2 Finally, the Agency suggests that Complainant may have acted nefariously because he was represented by one attorney on appeal and, according to the Agency, was represented by a different attorney from a different law firm in the negotiation of the settlement agreement.3 2 Administrative agencies such as the Commission possess substantial discretion in determining whether the resolution of an issue presented before the administrative agency has been rendered moot. An administrative agency is not bound by the constitutional requirement of a “case or controversy” that limits the authority of Article III courts to rule on moot issues. Climax Molybdenum Co. v. Secretary of Labor, Mine Safety and Health Administration, 703 F.2d 447, 451 (10th Cir. 1983). 3 The settlement agreement does not reflect that Complainant was represented by counsel when he signed the document. RFR Ex. 1. The Agency included as exhibits to its request for reconsideration an April 17, 2020, designation of representative and signed power of attorney form, which states 6 2022000356 However, our regulations state that, at any stage in the processing of an EEO complaint, “the complainant shall have the right to be accompanied, represented, and advised by a representative of complainant’s choice.” 29 C.F.R. § 1614.605(a). Complainant has the right to the representative of his choice, and we do not perceive Complainant exercising his right to engage two separate attorneys to represent him on two separate matters as deceitful. We note that the record reflects that the Agency was represented by two separate representatives on these matters as well. RFR Ex. 3. We emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VII.A (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. The Agency has not done so here. 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. 2020003268 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 1. The Agency shall determine the amount of compensatory damages to which Complainant is entitled and pay Complainant that amount: a. Within 60 calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant’s claim of compensatory damages with respect to the finding of unlawful retaliation. i. The Agency shall allow Complainant to present evidence in support of his compensatory damages claim. See Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). ii. Complainant shall cooperate with the Agency in this regard, including by responding to Agency requests for information and by completing any Agency forms. Complainant shall reply to any Agency requests for information within 30 calendar days. that Complainant had engaged a law firm regarding an April 3, 2020, Notice of Proposed Removal. RFR Ex. 2. 7 2022000356 b. Within 30 calendar days of the completion of the supplemental investigation, the Agency shall issue a final decision, with appeal rights to the Commission, addressing the issues of compensatory damages. A copy of the final decision must be submitted to the Compliance Officer as referenced below. c. Within 60 calendar days of determining the amount of compensatory damages due Complainant, the Agency shall issue a check to Complainant for the undisputed amount. 2. Within 90 calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive EEO training to S1 with a specific emphasis on reprisal and the obligation to not restrain, interfere, coerce, or retaliate against any individual who exercises his or right to oppose practices made unlawful by, or who participates in proceedings under, Federal equal employment opportunity laws. The Agency may contact the Commission’s Training and Outreach Division via email at FederalTrainingandOutreach@eeoc.gov for assistance in obtaining the necessary training. 3. Within 120 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against S1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S1 has left the Agency's employ, the Agency shall furnish documentation of his departure date. 4. Within 30 calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the paragraph entitled “Posting Order.” The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Naval Litigation Office at the Washington Navy Yard copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. 8 2022000356 The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 9 2022000356 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 December 7, 2022 Date