Virgil A.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Aug 6, 2020

0120182829 (E.E.O.C. Aug. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virgil A.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army (National Guard Bureau), Agency. Appeal No. 0120182829 Hearing No. 471-2013-00133X DISMISSAL OF APPEAL During the period at issue, Complainant worked as a dual-status Military Technician at the Selfridge Air National Guard Base, Michigan. Complainant filed an EEO complaint alleging that he was subjected to discrimination based on his race and reprisal for prior protected EEO activity when beginning in June 2012, he was subjected to a hostile work environment and reassignment. On April 15, 2014, the EEOC Administrative Judge (AJ) assigned to Complainant’s case issued a default judgment in favor of Complainant after the Agency refused to participate in the hearing process. As a result, the AJ found that Complainant was subjected to a hostile work environment and discrimination based on his race and retaliation for prior protected EEO activity beginning in June 2012. As remedies, the AJ ordered the Agency to pay Complainant $50,000 in non- pecuniary, compensatory damages; restore to Complainant 48 hours of annual leave and 427 of sick leave; provide training to the responsible management officials; and comply with the posting notice requirements of the AJ’s order. On August 10, 2018, Complainant filed the instant appeal, asserting that the Agency complied with a majority of the AJ’s order for relief, except that the Agency had not provided him with the ordered $50,000 in compensatory damages. 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. 0120182829 2 The Agency subsequently informed the Commission that the parties had entered into a global settlement agreement and included a copy of the agreement signed by the parties on February 19, 2019. The agreement noted that it was for the final settlement of any and all complaints and judgments arising from the employment relationship between the parties, including any and all current or prospective filings with the EEOC and any other court or Agency filing occurring prior to the date of the agreement. The agreement further noted that the parties agreed that it was for the final resolution of all issues arising in all discrimination complaints filed by Complainant with the Agency. We therefore find that the formal complaint that was the subject of this appeal has been resolved by this settlement agreement, which was executed after the filing of the instant appeal. We note that the agreement was signed by both Complainant and his attorney. Accordingly, Complainant's appeal is DISMISSED as settled. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 0120182829 3 Any supporting documentation must be submitted with your 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. 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 August 6, 2020 Date