U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reita M.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Request No. 0520170378 Appeal No. 0120171138 Agency No. 2003-0629-2016105205 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120171138 (April 21, 2017). 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 previous decision, the Commission affirmed the Agency's determination that Complainant and the Agency had not entered into a valid settlement agreement. We stated that, in a September 28, 2016, e-mail to an EEO program manager, Complainant said that she was seeking a formal written settlement agreement. We also stated that Complainant said that she attended a September 7, 2016, mediation "and that she 'was left to believe a resolution had been reached only to learn that the promises were empty because the agreement was never [formulated], but was placed in a simple email format.'" According to Complainant, the mediator sent her a September 7, 2016, e-mail that described the verbal agreement that the parties reached in mediation. We noted in a footnote that the record did not contain a copy of the e-mail and that Complainant stated that she could not print the e-mail because it was in a protected mode. The Agency stated in its final decision that Complainant had filed a formal EEO complaint on the underlying matter on October 21, 2016, and that the Agency had accepted the complaint for processing.2 The record did not contain a written settlement agreement signed by both parties. Citing Acree v. Department of the Navy, EEOC Request No. 05900784 (October 4, 1990), we noted that the Commission has upheld the validity of an oral agreement when it is reached during a hearing before an EEOC Administrative Judge and transcribed by a court reporter. We found that the situation in this case did not involve a valid oral agreement like the agreement described in Acree. Accordingly, we concluded that the parties had not entered into a valid settlement agreement. In her request for reconsideration, Complainant, through her attorney, argues that the previous decision involved a clearly erroneous interpretation of material fact or law and will have a substantial effect on the Agency's policies, practices, or operation. She reiterates her claim that she and the Agency reached a verbal agreement through mediation, and she asserts that the mediator told her that a signed written agreement was not necessary. Complainant submits a screen shot of the mediator's September 7, 2016, e-mail. She acknowledges that the screen shot is of poor quality, and she provides her own transcription of the e-mail. Complainant argues that the situation in Acree is analogous to her situation because "in one instance the parties' verbal agreement [was] memorialized by a court reporter, and in the other instance, the parties' verbal agreement [was] memorialized by the mediator." Complainant contends that she contacted the Agency's EEO Office about an EEO complaint, that she understood the mediation to be an EEO mediation, and that the oral agreement resolved a claim of discrimination. Finally, Complainant argues that the previous decision will have a substantial impact because "[t]here is a paucity of decisional guidance on issues raised by this appeal to the Commission." In response, the Agency argues that Complainant's request does not meet the criteria for reconsideration. The Agency asserts, as it did on appeal, that the mediation did not resolve a claim of discrimination and that the EEOC does not have jurisdiction over the alleged settlement agreement. We remind Complainant 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) (rev. Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous 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. Pursuant to Commission Regulation 29 C.F.R. § 1614.603, "[a]ny settlement reached shall be in writing and signed by both parties and shall identify the claims resolved." As we noted in our previous decision, the Commission has upheld an oral settlement agreement only in narrow circumstances: where an agreement was formed during a hearing before an EEOC Administrative Judge and transcribed by a court reporter. Acree v. Dep't of the Navy, EEOC Request No. 05900784 (Oct. 4, 1990). "The requirement that the agreement be entered into a hearing transcript is central to finding that the agreement is binding." Maldonado v. U.S. Postal Serv., EEOC Appeal No. 0120082173 (Aug. 20, 2008) (no binding settlement agreement where, although the complainant asserted that the agency representative agreed to settlement and to forward language to the complainant, there was no evidence of an oral agreement reached and transcribed in the Administrative Judge's presence); see also Drinkwater v. Dep't of Justice, EEOC Appeal No. 0120080859 (Feb. 29, 2008) (no binding oral agreement where contract investigator drafted an agreement but agency representative did not sign it and there was no evidence of an agreement reached and transcribed before an EEOC AJ); Ullmayer v. Dep't of Def., EEOC Appeal No. 01A31406 (Sept. 8, 2003) (finding legally binding settlement agreement where hearing transcript demonstrated parties' intent and showed terms of agreement); Opfer v. Dep't of Commerce, EEOC Appeal No. 01A11610 (Sept. 10, 2002) (parties entered into a legally binding settlement agreement where hearing transcript showed terms of agreement and both parties' attorneys clearly assented to the agreement); Newton v. U.S. Postal Serv., EEOC Appeal No. 01960154 (Mar. 26, 1996) (oral settlement agreement purportedly reached during prehearing conference before an EEOC Administrative Judge not enforceable where there was no hearing transcript). In this case, as we correctly held in the previous decision, the parties have not entered into a binding oral agreement. Even if Complainant has accurately transcribed the mediator's e-mail, she has not established the existence of a valid settlement agreement. Contrary to Complainant's assertion, an e-mail prepared by a mediator is not analogous to a hearing transcript prepared by a court reporter. There is no merit to Complainant's assertion that there is a paucity of guidance on this issue. 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. 0120171138 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. 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 _9/14/17_________________ 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 The Agency also stated that Complainant "contacted the EEO office and requested mediation for non-EEO workplace dispute issues." The Agency asserted that EEOC did not have authority to enforce settlement agreements that arose in other dispute-resolution processes and did not involve discrimination claims. Having concluded that the parties had not entered into a valid settlement agreement, we did not need to address this issue in our previous decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0520170378 2 0520170378