Woodrow F.,1 Complainant,v.Michael Piwowar, Acting Chair, Securities and Exchange Commission, Agency.

Equal Employment Opportunity Commission

Apr 20, 2017

0520170165 (E.E.O.C. Apr. 20, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Woodrow F.,1
Complainant,

v.

Michael Piwowar,
Acting Chair,
Securities and Exchange Commission,
Agency.

Request No. 0520170165

Appeal No. 0120162241

Agency No. 000082016

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in EEOC Appeal No.
0120162241 (December 14, 2016). 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(c).

In the underlying matter, Complainant alleged that the Agency had breached a settlement
agreement resolving an informal EEO claim he brought against the Agency and that the
Agency had violated the Older Workers’ Benefit Protection Act (OWBPA) in negotiating that
settlement by allowing Complainant, who was not represented by counsel, the period of only
one day to accept its settlement offer.

Our previous decision reversed the Agency’s final decision with respect to the settlement of
Complainant’s age discrimination claims on the ground that the Agency failed to comply with
the OWBPA, while affirming with respect to all non-age discrimination claims. We remanded
the age discrimination claims for further processing.

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.
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In its request to reconsider, the Agency argues that our previous decision misapplied the
OWBPA rule requiring that age discrimination claimants be afforded 21 days to consider the
terms of any offer of settlement. The Agency contends that, under the OWBPA, the Agency
was obliged only to afford Complainant a “reasonable period of time” to accept its settlement
offer which, it argues, in this case it did. The Agency’s position is not well taken. Even if the
Agency were correct that Complainant was not entitled to a full 21 days to consider accepting
the settlement offer, the Agency’s insistence that he accept the offer within one day, without
the opportunity to consult counsel, did not afford him the “reasonable period of time” the
OWBPA requires. See 29 C.F.R. § 1625.22(g)(4)(requiring that availability of counsel be
considered in determining reasonable period of time under OWBPA).

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. 0120162241 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.2

ORDER

The Agency is ordered to process the remanded age claims from the point processing ceased in
accordance with 29 C.F.R. Part 1614. The Agency shall acknowledge to the Complainant that
it has received the remanded claims within thirty (30) calendar days of the date this decision
was issued.

A copy of the Agency's letter of acknowledgment to Complainant must be sent 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

2 Although Complainant requested attorney’s fees in connection with his opposition to the
Agency’s request for reconsideration, we note that attorney’s fees are not recoverable under
the the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621
et seq.
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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-l6(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 (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

April 20, 2017
Date