[Redacted], Nathan S., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2021000276 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nathan S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021000276 Hearing No. 530-2016-00163X Agency No. DLAN-15-0199 DISMISSAL OF APPEAL On October 14, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 14, 2020 final action concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. During the period at issue, Complainant worked as a Distribution Process Worker, WG-6901-06, at the Agency’s DLA Distribution Susquehanna Deployed Depot in New Cumberland, Pennsylvania. On June 10, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discriminatory harassment based on race (African American) and in reprisal for prior EEO activity when: 1. During a meeting on April 15, 2015, he was disrespected and put on the spot in front of his peers; and 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. 2021000276 2 2. On April 15, 2015, he was issued a Written Counseling from management. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. Thereafter, the Agency filed a motion for summary judgment on two formal complaints: the one discussed above (Agency No. DLAN-15-0199, as well as a formal complaint identified as Agency No. DLAN-14-0043. On August 20, 2020, the AJ issued a summary judgment decision, finding no discrimination. The summary judgment decision, however, solely addressed Agency No. DLAN-15-0199 and did not address Agency No DLAN-14-0043. On September 14, 2020, the Agency issued a final order implementing the AJ’s summary judgment decision. However, on the same day, September 14, 2020, Complainant entered into a settlement agreement in resolution of the two complaints which were expressly identified as Agency Nos. DLAN-14-0043 and DLAN-17-0192. The September 14, 2020 settlement agreement, in pertinent part, contained the following provision: 1. The Agency agrees as follows: a. Lump Sum Payment: The Agency agrees to pay the Complainant a non- wage lump sum of $4,300 (Four Thousand Three Hundred Dollars). The Agency will submit the necessary paperwork to the Defense Finance and Accounting Service (DFAS) for payment within 30 days from the effective date of this Agreement; however, the Parties understand that DFAS is a separate agency and is not a party to this agreement and the Agency cannot dictate when said payment will be made. Complainant himself allocates for tax purposes, the entire $4,300 (Four Thousand Three Hundred Dollars) lump sum payment as non-wages to be reported on IRS Form 1099-MISC. The $4,300 does not represent attorney’s fees. Complainant acknowledges that he remains responsible for payment of all taxes, if any, arising from receipt of the settlement monies described above and to hold the Agency harmless in this regard. 2021000276 3 2. Complainant agrees as follows: a. The Complainant agrees to withdraw with prejudice EEOC No. 530-2017- 00142X, DLAN-14-0043 and DLAN-17-0192. . . . The parties agree to accept as full settlement resolution of the dispute the relief agreed upon as complete satisfaction of any and all claims and demands …associated with this EEOC formal complaint as well as any and all matters known to Complainant, regarding his employment with the Agency prior to the execution of this Agreement [emphasis added]. In its brief in Opposition to Appeal of Summary Judgment in the captioned complaint, DLAN- 15-0199, the Agency had argued that Complainant has waived his right to appeal the AJ’s August 20, 2020 Order due to the execution of a September 14, 2020 global settlement agreement (EEOC Number 530-2017-00142X, Appeal Nos. DLAN-14-0043 and DLAN 17- 0192. We determine that the Agency properly noted that Complainant had waived his right to appeal the September 14, 2020 final order implementing the AJ’s summary judgment decision on the captioned complaint. As noted above, the referenced settlement agreement encompassed resolution of all employment matters that occurred prior to the execution of the settlement agreement, which include the two April 2015 incidents cited in the captioned complaint. Accordingly, Complainant’s appeal from the final order in Agency NO. DLAN-15-0199 is DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish 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. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2021000276 4 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 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. 2021000276 5 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 February 2, 2022 Date