U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ronny S.,1 Complainant, v. Robert D. Snyder, Acting Secretary, Department of Veterans Affairs, Agency. Request No. 0520170053 Appeal No. 0120132198 Agency No. 200H-0532-2012100521 DECISION ON REQUEST FOR RECONSIDERATION On June 14, 2016, the Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider the decision in EEOC Appeal No. 0120132198 (May 17, 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). BACKGROUND Following an investigation on Complainant's complaint, as amended, he did not request a hearing. The Agency then issued a final Agency decision (FAD) on March 27, 2013, finding no discrimination. Thereafter, Complainant filed an appeal, which we acknowledged to the parties by letters dated May 31, 2013. The Agency filed a brief dated August 5, 2013, opposing the appeal. In our appellate decision, we reversed the FAD, in part. Specifically, we found that Complainant was discriminated against based on his religion when the Agency did not accommodate his request for leave on April 7, 2012, for religious purposes to observe Easter Vigil. We affirmed the Agency's finding of no discrimination on remainder of Complainant's complaint. EEOC Appeal No. 0120132198 (May 17, 2016). While the appeal was pending, on June 9, 2014, the parties entered into a settlement agreement. It provided, in relevant part, that: 1. In return for, and in consideration of the actions specified in paragraph 2, the Complainant hereby: a. Agrees that by execution of this agreement, he voluntarily withdraws in its entirety his complaints of sex discrimination, reprisal and hostile work environment pertaining to EEOC Case Number(s) 520-2011-00389X, Agency No. 200H-0532-2010104902, and all other causes of action, whether known or unknown arising before execution of this agreement including but not limited to all EEO complaints and amendments thereof, grievances, unfair labor practices, appeals and civil actions against the Agency and all other causes of action arising before execution of this agreement. b. The Complainant further agrees that the Agency may submit the agreement as evidence of withdrawal or waiver of any claim to be withdrawn or waived hereunder. On request, the Agency for the first time notifies the Commission of the above settlement agreement. It explains that the settlement agreement was negotiated by a local Office of General Counsel (OGC) attorney, who was unaware at the time it was executed that Complainant filed the instant appeal. The Agency writes that the local OGC attorney only learned of the appeal when Complainant's attorney approached her with the recent Office of Federal Operations decision and asked for payment of attorney fees. The Agency argues that when Complainant waived his right to continue with his appeal by virtue of the above settlement language, he divested the Commission of jurisdiction to render a decision on this appeal. The Agency asks that we rescind our decision in EEOC Appeal No. 0120132198. Complainant does not respond to the Agency's request for reconsideration. ANALYSIS AND FINDINGS 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. The Agency's request fails to meet the criteria for reconsideration. Our appellate decision did not involve a clearly erroneous interpretation of material fact or law because the settlement agreement was not before us, nor will our appellate decision have a substantial impact on the policies, practices, or operations of the Agency. Nevertheless, while the appeal was pending, the parties entered into the settlement agreement and Complainant did not withdraw his appeal, per the terms thereof. Under its terms, Complainant agreed to withdraw "all EEO complaints and amendments thereof... [and] appeals... against the Agency... arising before execution of this agreement...." Given the settlement agreement, on our own motion we reconsider our appellate decision. In light of the fact that the parties did not notify us of the settlement agreement, we will not disturb our finding of discrimination therein and the relief designed to prevent further discrimination. But in light of the settlement agreement, we rescind all individual/personal relief ordered for Complainant. See Alexandria P. v. Department of Homeland Security, EEOC Request No. 0520160074 (Dec. 23, 2015) (the parties entered into a settlement agreement two days after the complainant filed her appeal closing an unrelated informal complaint and agreeing to globally withdraw any pending claim. The parties did not notify the EEOC of the agreement prior to our deciding the appeal. The Agency notified the EEOC of the agreement for the first time on request for reconsideration. Given these circumstances, the Commission did not disturb its finding of discrimination, but rescinded all individual/personal relief). Accordingly, the Agency's request for reconsideration is DENIED. The EEOC, on its own motion, reconsiders our decision in EEOC Appeal No. 0120132198, as explained above. The order in EEOC Appeal No. 0120132198 is MODIFIED. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. ORDER The Agency is ORDERED to take the following remedial actions within one hundred-twenty (120) days of the date on which this decision becomes final: 1. The Agency shall provide eight (8) hours of in-person EEO training to all managers and supervisors in the Agency's National Call Center for Homeless Veterans in Canandaigua, New York, regarding their duties and responsibilities under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., with special emphasis on religious accommodation. 2. The Agency shall consider taking appropriate disciplinary action against the responsible management official(s) who denied Complainant's request for religious accommodation. The Agency shall report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management official has left the Agency's employment, the Agency shall furnish documentation of his departure date. 3. The Agency shall post the notice referenced in the paragraph below entitled, "Posting Order." The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include evidence that the corrective has been implemented. POSTING ORDER (G1016) The Agency is ordered to post at its National Call Center for Homeless Veterans facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. 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 (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 February 2, 2017 __________________ Date 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0520170053 2 0520170053