0520120583
02-13-2013
Tatiana A. Christian, Complainant, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration, Agency.
Tatiana A. Christian,
Complainant,
v.
Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration,
Agency.
Request No. 0520120583
Appeal No. 0120121754
Agency No. NCN-11-JSC-070
DENIAL
Complainant timely requested reconsideration of the decision in Tatiana A. Christian v. National Aeronautics & Space Administration, EEOC Appeal No. 0120121754 (July 16, 2012). 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(b).
The previous decision addressed Complainant's contentions that the Agency had breached the settlement agreement signed by the parties on November 18, 2011. Complainant alleged that the settlement agreement had been breached in a letter to the Agency on February 4, 2012. She filed an appeal with the Commission on March 13, 2012, when the Agency had not issued a letter of determination on her allegations within 35 days of the date she notified the Agency of the potential breach. The Agency issued a letter of determination on May 7, 2012, in which it found it had not violated the terms of the settlement agreement. Our previous decision affirmed the Agency's finding that it had not breached the agreement, with the exception of provision 3 of the agreement, which was voided for lack of consideration. We declined to reinstate Complainant's original complaint, as she had requested.
In her request for reconsideration, Complainant argued that the previous decision was clearly erroneous when it did not find that the Agency had breached the settlement agreement and when it declined to reinstate her complaint. She also argued that the Agency had yet to comply with provisions 1(a) and 4 of the settlement agreement, which related to her potential entitlement to per diem reimbursement while she was on a detail assignment. She stated that she had a received a legal opinion in her favor from the Agency on November 22, 2011, as provided for in provision 1. As of August 18, 2012, she alleged that she had not received the payment to which she was entitled. Complainant also argued that she believed that provisions 1(a), 4, and 6 also lacked consideration, and she again requested that her original complaint be reinstated. She noted that she had filed a subsequent EEO complaint based upon retaliation.
The Agency filed a response to Complainant's request for reconsideration, which was filed in an untimely manner. Complainant submitted a request to the Commission to disregard the Agency's untimely response.
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law. Complainant's arguments in support of her request for reconsideration as to the Agency negotiating in bad faith were also made in support of her initial appeal. These arguments were adequately considered at that time. We note that a "request for reconsideration is not a second appeal to the Commission." E.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007); EEO Management Directive for Part 1614 (EEO MD-110), Chap. 9, �VII.A. (Nov. 9, 1999).
However, in her request for reconsideration, Complainant also alleged, for the first time, that the Agency had still failed to comply with provisions 1(a) and 4 of the settlement agreement. She claimed that although the Agency had issued its determination of whether she was entitled to a per diem payment for dates when she was on detail to Agency Headquarters in Washington, D.C., a dispute over the dates of the detail and over the provision of details explaining the Agency's calculations had prevented a resolution. As the Agency is now on notice of Complainant's additional breach claims, we will order the Agency to issue a letter of determination thereon.
Therefore, 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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120121754 remains the Commission's decision. The Agency is ORDERED to process the new claims of allegation of breach of the settlement agreement in accordance with the Order of the Commission, below. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
Within thirty-five (35) days of the date of receipt of this decision, the Agency is ordered to issue a new letter of determination on Complainant's allegations of breach of the November 18, 2011, settlement agreement as raised in her request for reconsideration. The Agency shall address the merits of Complainant's claims of breach and shall provide the appropriate appeal rights to the Commission. The Agency shall provide a copy of the letter of determination, with supporting documentation, to the Compliance Officer, as referenced below.
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 (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 (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
February 13, 2013
Date
2
0520120583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120583