[Redacted], Carey G., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Jun 29, 2022

Appeal No. 2020003366 (E.E.O.C. Jun. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carey G.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Request No. 2022002085 Appeal No. 2020003366 Agency No. DEA-2015-02305 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. 2020003366 (September 2, 2021). 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). At the time of events giving rise to this complaint, Complainant worked as a Diversion Investigator (GS-1801) at the Agency’s Resident Office in Greensboro, North Carolina. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process and alleged discrimination based on his disability (loss of use of right arm). 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. 2022002085 2 Complainant alleged that, on August 22, 2015, he learned that he was not selected for the position of Criminal Investigator (GS-1811), advertised under Announcement Number BA2014, because he did not meet the Agency’s medical requirement. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a Motion for Summary Judgment. The AJ denied the request and scheduled a hearing for September 9-10, 2019. On August 28, 2019, Complainant and the Agency entered into a settlement agreement to resolve the matter. On April 26, 2020, Complainant sent a letter to the Acting EEO Director and asserted that there was “substantial failure” on the Agency’s part to comply with the settlement agreement. The Agency asserted it had fully complied with the settlement agreement. Complainant filed an appeal with the Commission. In EEOC Appeal No. 2020003366, we determined that the August 28, 2019, settlement agreement contained no consideration from the Agency. The appellate decision determined that the Agency did not undertake any legal detriment when it agreed to evaluate Complainant’s ability to be trained to perform the full range of essential functions of a Special Agent position, without endangering the health or safety of Complainant, employees, or others through a waiver of the medical standard(s), with or without reasonable accommodations. The appellate decision stated that the Agency essentially agreed to provide Complainant with an individualized assessment of whether his disability posed a direct threat of substantial harm, and that this was merely an agreement to treat Complainant in accordance with the law. As such, the previous decision found that the settlement provided Complainant nothing more than that to which he was already entitled to as matter of law and that Complainant received no consideration for his agreement to withdraw his EEO complaint. Based on the record, the appellate decision found the settlement agreement to be void and vacated the Agency’s final decision finding no breach. The matter was remanded for further processing at the point where processing previously had ceased. On September 8, 2021, the Agency submitted a request for reconsideration of the previous decision. First, the Agency asserts that Complainant’s appeal below should have been denied as he had failed to appropriately notify the Agency of the alleged noncompliance. Secondly, the Agency argues that the appellate decision erroneously interpreted material facts and that the appellate decision, as is, would have a substantial impact on the policies, practices, and operations of the Agency. For example, the Agency asserts that Complainant, in fact, received consideration in the form of a second, expediated individualized assessment; an assessment that the Agency argues he would not have otherwise been entitled to. Overall, the Agency requests that Complainant’s allegations of breach of the settlement agreement be rejected, and his appeal dismissed in its entirety. In response, Complainant argues that the Agency’s request should be denied as the appellate decision correctly determined that the Agency suffered no consequences by performing a task it was obligated to complete. 2022002085 3 Upon review of the record, we find the Agency’s arguments to be lacking. As correctly determined in the appellate decision, the Agency provided no consideration when it agreed to provide Complainant with an individualized assessment of whether his disability posed a direct threat of substantial harm. This agreement by the Agency was merely agreeing to an action that it was already obligated to provide. See EEOC Regulation 29 C.F.R. § 1630.15(b)(2) and 29 C.F.R. § 1630.2(r). We are also not persuaded by the Agency’s argument that consideration was provided when it provided Complainant a secondary and expediated assessment. The Agency failed to demonstrate that it incurred any legal detriment simply by expediting a secondary assessment. 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. The Agency has not done so here with respect to the appellate decision. 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. 2020003366 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 (E0618) The Agency shall reinstate Complainant’s complaint and resume processing the matter from the point processing previously ceased pursuant to 29 C.F.R. Part 1614. The Agency shall, within 30 days of the date this decision is issued, notify Complainant that it has reinstated the settled matter. A copy of the letter to Complainant must be sent to the Compliance Officer referenced herein. 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. 2022002085 4 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. 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. 2022002085 5 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 June 29, 2022 Date