Janita H.,1 Complainant,v.Jovita Carranza, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionNov 4, 2020

2020004718 (E.E.O.C. Nov. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janita H.,1 Complainant, v. Jovita Carranza, Administrator, Small Business Administration, Agency. Request No. 2020004718 Appeal No. 2020002170 Agency No. 01-18-017 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Janita H. v. Small Business Admin., EEOC Appeal No. 2020002170 (June 25, 2020). 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). Complainant filed an appeal to the Commission regarding an alleged breach of settlement agreement by the Agency. Specifically, Complainant alleged that the agreement was violated when the Agency reassigned her to a new position with a different position description (PD) on February 14, 2019. In Complainant’s first appeal to the Commission, the Commission found that the Agency did not support its assertion that Complainant’s allegation was untimely. See EEOC Appeal No. 2019003434 (Sept. 27, 2019). With regard to the merits of the breach allegation, the Commission found that the record was unclear on how Complainant’s PD changed in 2019. 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. 2020004718 2 The record did not include the 2019 PD, nor did Complainant specifically describe how her duties and responsibilities were altered. Consequently, the Agency’s determination that it was in compliance with the agreement was vacated and the matter was remanded for a supplemental investigation. The Agency was ordered to obtain evidence regarding the PD for the 2019 reassignment and determine how it differs from the PD referenced in the 2009 agreement. After a supplemental investigation, the Agency issued a final decision finding no breach of the subject settlement agreement. Complainant appealed. The Commission affirmed the Agency’s final decision. See EEOC Appeal No. 2020002170 (June 25, 2020). Specifically, Commission found that the Agency has substantially complied with the September 16, 2009 settlement agreement. Our decision noted it was not until ten years later, in 2019, that Complainant alleged breach and Commission precedent has held that in the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. Additionally, we noted that a managerial decision to change existing standards in a way that conflicts with a pre- existing settlement agreement is not necessarily a breach once a reasonable amount of time after the execution of a settlement agreement had passed. Therefore, the Commission found the Agency’s determination that it was in compliance with the agreement was proper. In her request for reconsideration, Complainant reiterates arguments previously made and considered in our prior decision. 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) (Aug. 5, 2015), at 9-18; 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. Complainant 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. 2020002170 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 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. 2020004718 3 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 November 4, 2020 Date