Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Request No. 0520150178 Appeal No. 0120142643 Agency No. ARPICAT10JUN03587 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120142643 (December 22, 2014). 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 our prior decision, we found that the Agency had breached provision 3.a of the July 1, 2011 settlement agreement into which the parties entered. Provision 3.a required the Agency to "change Complainant's rating of "Unsuccessful" given by [Major] to "Fully Successful." Our prior decision found it undisputed that the required change was made in Complainant's official personnel file. However, a copy of the original rating was retained in an "unofficial" file at the facility and was purportedly referenced in a later investigative report on an unrelated EEO complaint. The Agency conceded that this "unofficial" copy was retained. We were not persuaded by the Agency's argument that it only had to expunge the original rating from Complainant's official personnel file. Once the Agency agreed to change Complainant's rating, it was reasonable for Complainant to expect that the original rating would not continue to be used or referenced by the Agency. Although the Agency Attorney asserted that this "oversight" has now been corrected and the copy of the original rating in the "unofficial local file" has been destroyed, we remanded the matter back to the Agency to ensure full compliance with the agreement. In his request for reconsideration, Complainant seems to be requesting more relief than that to which he is entitled. The only remedy available to Complainant under these circumstances is specific performance of the settlement agreement or reinstatement of the complaint that gave rise to it. We are not persuaded that this request warrants reconsideration of our prior decision. 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. 0120142643 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. ORDER Within 120 calendar days of the date this decision becomes final, the Agency shall expunge any copy or reference to the "Unsuccessful" rating Complainant received for the rating period ending June 30, 2010, from all Agency records. Those same records shall reflect that Complainant received a "Fully Successful" rating for that period. Moreover, to the extent that documents (such as the investigative report referenced by Complainant in our prior decision) have been released by the Agency since the execution of the settlement agreement that refer to the "Unsuccessful" rating, those documents shall be corrected. An appropriate Agency official shall prepare a statement verifying that these actions have been executed and a copy shall be sent to Complainant and the EEOC Compliance Officer 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 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 April 29, 2015 Date 2 0520150178 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013