EEOC Appeal 2020000861

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Randolph A.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 2020000861
Appeal No. 0120181473
Prior Appeal, Request, Petition Nos. 0120120184, 0520160050, 0420170020
Hearing No. 550-2012-00207X
Agency No. 200P-0010-2010104757
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) 	reconsider 	its 	compensatory 	decision 	in 	EEOC 	Appeal 	No. 	0120181473
(September 19, 2019). 	For the reasons that follow, the Commission DENIES the Agency’s
request for reconsideration for failure to meet the regulatory criteria.
BACKGROUND
On September 22, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (Asian), national origin (Taiwan), age (61), and
reprisal for prior protected EEO activity when, on September 7, 2010, he was not selected for a
GS-13 Statistician position. At the conclusion of the investigation, the Agency provided
Complainant with a copy of the report of investigation and notice of his right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
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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On August 29, 2011, the AJ assigned to the case granted the Agency’s motion for summary
judgment, finding that Complainant was not subjected to discrimination as alleged. The Agency
subsequently issued a final order adopting the AJ’s decision.
On appeal, the Commission reversed the Agency’s final order and found that Complainant
established that his nonselection was based on reprisal. EEOC Appeal No. 0120120184 (Aug. 6,
2015). The Commission ordered various remedies, including ordering the Agency to offer
Complainant the Statistician position or a substantially similar position, to pay Complainant back
pay and benefits with interest, and to conduct a supplemental investigation into Complainant’s
entitlement 	to 	compensatory 	damages 	and 	attorney’s 	fees 	and 	costs. 	The 	Commission
subsequently denied the Agency’s request for reconsideration. EEOC Request No. 0520160050
(Feb. 2, 2016).
On June 23, 2016, the Agency filed a request to vacate the Commission’s decisions in Appeal
No. 0120120184 and Request No. 0520160050. The basis for the request was the Agency’s
discovery of a November 15, 2010, global settlement agreement that resolved matters including
all of Complainant’s pending EEO complaints filed with the Agency. On May 2, 2017, the
Commission docketed a petition for enforcement to examine the Agency’s compliance with the
Order set forth in Appeal No. 0120120184 and Request No. 0520160050. The Commission
granted the petition for enforcement and denied the Agency’s request to vacate. EEOC Petition
No. 0420170020 (Nov. 22, 2017). In its decision, the Commission found that the Agency had
waived its untimely raised argument that the November 2010 settlement agreement barred the
Commission from ordering relief by not raising it earlier in the EEO process and restated the
Order set forth in Appeal No. 0120120184 and Request No. 0520160050.
On February 22, 2018, the Agency issued its final decision on compensatory damages.
Complainant appealed this final decision to the Commission. In a decision modifying the
Agency’s compensatory damages award, the Commission again found that the Agency waived
the argument that the matter was precluded by the 2010 settlement agreement by not raising the
argument during the hearing stage, during the processing of Appeal No. 0120120184, or in its
subsequent request for reconsideration. EEOC Appeal No. 0120181473 (Sept. 19, 2019). The
Agency subsequently filed the instant request for reconsideration.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
On request for reconsideration, the Agency contends that Complainant is not entitled to a
compensatory damages award of any amount because Complainant settled the underlying EEO
complaint when he signed the November 15, 2010, global settlement agreement. According to
the Agency, the Commission did not have jurisdiction to award damages because the settlement
agreement was valid and binding. The Agency also argues that Complainant has abused the EEO
process.

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In response to the Agency’s request for reconsideration, Complainant argues that the Agency’s
request 	for 	reconsideration 	is 	an 	invalid 	attempt 	to 	relitigate 	matters 	addressed 	by 	the
Commission in Petition No. 0420170020. Complainant requests that the Commission deny the
Agency’s request and order the Agency to comply with the Orders set forth in Appeal Nos.
0120120184 and 0120181473, Request No. 0520160050, and Petition No. 0420170020.
ANALYSIS AND FINDINGS
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). 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 for reconsideration of the decision in Appeal No. 0120181473. The Agency’s request
for reconsideration expresses disagreement with the compensatory damages decision and
reiterates arguments previously raised and considered on appeal. We emphasize that a request for
reconsideration is not an appeal to the Commission. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VII.A (Aug. 5,
2015). 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.
The Agency argues that Complainant is not entitled to compensatory damages because he signed
the November 15, 2010, global settlement agreement. The Agency also contends that, because of
the settlement agreement, the Commission does not have the authority to award compensatory
damages.
In a number of decisions, the Commission has found that the dismissal of claims was appropriate
where there was an applicable settlement agreement. See, e.g., Lyle S. v. U.S. Postal Serv.,
EEOC Appeal No. 2019002466 (June 13, 2019) (dismissing settled claims pursuant to 29 C.F.R.
§ 1614.107(a)(5) as moot); Green v. U.S. Postal Serv., EEOC Appeal No. 0120101695 (Aug. 9,
2010) (settlement agreement rendered claims moot); Johnson v. Tennessee Valley Authority;
EEOC Appeal No. 0120092209 (Sep. 15, 2009) (settlement agreement rendered complaint
subject to dismissal under 29 C.F.R. § 1614.107(a)(1) for failure to state a claim); Tittle v. Dep’t
of Veterans Affairs, EEOC Appeal No. 01A44708 (April 13, 2005) (after signing settlement
agreement, complainant lacked standing, and his claim failed to state a claim); Hedman v. U.S.
Postal Serv., EEOC Appeal No. 01A32743 (Sep. 23, 2003) (settled claim failed to state a claim).

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However, even assuming for the purposes of this decision that the November 15, 2010, global
settlement 	agreement 	applied 	to 	the 	EEO 	complaint 	at 	issue in 	the 	instant 	request 	for
reconsideration,2 we decline to find that the complaint should be dismissed as moot or for failure
to state a claim. In the cases cited above, the existence of a settlement agreement was raised prior
to a finding of liability by the Commission. In the instant case, the Agency did not disclose the
existence of the global settlement agreement until June 23, 2016, well after the Commission had
found 	the 	Agency 	liable 	for 	discrimination 	and 	denied 	the 	Agency’s 	first 	request 	for
reconsideration. The Agency also subsequently issued its February 21, 2018, decision awarding
Complainant $96,976.81 in compensatory damages and its August 10, 2018, decision awarding
Complainant reasonable attorney’s fees and costs. Because the Agency did not raise the 2010
settlement 	agreement 	until 	after 	the Commission 	found 	that 	the agency 	had 	subjected
Complainant to discrimination, we find that equitable considerations weigh against dismissing
the underlying EEO complaint and that Complainant is still entitled to compensatory damages,
attorney’s fees, and other relief.
Although generally a valid, binding settlement agreement would be grounds for dismissing the
EEO complaint, under the specific circumstances of this case, the equitable doctrine of laches
precludes dismissing the complaint and vacating the Commission’s prior decisions. Under
laches, if a party neglects to assert rights against an adverse party over a period of time, the
delaying party can be precluded from asserting the neglected rights. Laches generally requires
proof of two elements: (1) lack of diligence by a party; and (2) proof of prejudice to the adverse
party. See Costello v. United States, 365 U.S. 265, 282 (1961). Proof of prejudice includes
consideration of whether the adverse party changed their position or detrimentally relied upon
the party that delayed asserting its rights. See Fulps v. City of Springfield, Tenn., 715 F.2d 1088,
1096 (6th Cir. 1983). The Commission has consistently held that a complainant must act with
due diligence in the pursuit of his claim or the doctrine of laches may apply. See O’Dell v. Dep’t
of Health and Human Serv., EEOC Request No. 05901130 (Dec. 27, 1990); see also Elayne C. v.
Dep’t of the Navy, EEOC Appeal No. 2020001137 (Feb. 14, 2020); Fonda M. v. Dep’t of
Defense, EEOC Appeal No. 2019005651 (Feb. 6, 2020). The Commission has also found that
laches can apply where an agency neglects to timely assert a defense. See Bornemann v. Dep’t of
Defense, EEOC Request No. 05890989 (Dec. 21, 1989).
Here, we find that laches applies and that equitable considerations weigh against vacating our
decisions finding that Complainant was subjected to discrimination and ordering relief. In the
instant case, there was a nearly six-year delay in asserting that the complaint was settled, and the
Agency did so only after the Commission had found the Agency liable for discrimination and
ordered the Agency to award compensatory damages and other relief. The Agency contends that
it was not aware of the settlement agreement because the Agency does not maintain a central
repository for settlement agreements.
2 Age was a basis for the underlying EEO complaint at issue here, and it is not clear whether the
global settlement agreement complies with the waiver requirements of the Older Workers’
Benefits Protection Act.

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We find that the lack of a recordkeeping system to facilitate discovery of relevant settlement
agreements involving EEO matters shows that the Agency did not act with due diligence when it
failed to raise the settlement agreement until this matter had been litigated for years.
We further find that Complainant was prejudiced by the Agency’s delay. According to the
record, Complainant was pro se when he filed his EEO complaint on September 22, 2010, during
the investigation, during the hearing process, and when he filed EEOC Appeal No. 0120120184
on October 3, 2011.3 Complainant did not hire an attorney until after the Commission found that
he had been subjected to discrimination by the Agency and ordered relief. Even after the Agency
produced the settlement agreement, Complainant continued to incur litigation costs based on his
detrimental reliance on the Agency’s actions, and the Agency recognized Complainant as a
prevailing party by awarding him compensatory damages in its February 22, 2018, decision and
by awarding him attorney’s fees and costs in its August 10, 2018, decision. We therefore find
that equitable considerations weigh in favor of Complainant, and we decline to vacate our prior
decisions finding discrimination and ordering relief, including compensatory damages, for
Complainant.
After reviewing the previous decision and the entire record, the Commission finds that the
Agency’s 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. 0120181473 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.
ORDER
To the extent that it has not already done so, the Agency is ORDERED to take the following
actions:
1. 	Within sixty calendar days of the date this decision is issued, the Agency shall pay
Complainant compensatory damages in the amount of $129,540.09.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." 	The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 	Further,
the report must include supporting evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1019)
If 	Complainant 	has 	been 	represented 	by 	an 	attorney 	(as 	defined 	by 	29 	C.F.R.
§ 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency.
3 The November 15, 2010, global settlement agreement also does not indicate that Complainant
was represented when he signed the document.

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The attorney shall submit a verified statement of fees to the Agency -- not to the Equal
Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of receipt of this decision. The Agency shall then process the claim for attorney's
fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. 	Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. 	See 29 C.F.R. § 1614.403(g). 	The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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.

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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
June 23, 2020
Date