EEOC Appeal 2024001407

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Carter R.,1
Complainant,
v.
Markwayne Mullin,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Request No. 2024001407
Appeal No. 2023000796
Agency No. HS-FEMA-01545-2019
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission
(EEOC or Commission) reconsider its decision in Carter R. v. Dep’t of Homeland
Sec., EEOC Appeal No. 2023000796 (Nov. 14, 2023). 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).
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.

2024001407	2
During the period at issue, Complainant was an applicant for employment with the
Agency. 	On 	July 	10, 	2019, 	Complainant 	filed 	a 	formal 	complaint 	alleged
discrimination on the basis of disability (physical) and in reprisal prior EEO activity2
when:
1. On or around April 24, 2019, Complainant was informed that he was not
referred for consideration for job Vacancy Announcement No. FEMA-19-
SC-264736-DE1, Grants Management Specialist, GS-1109-13;
2. On or around July 22, 2019, Complainant was notified of his non-selection
for 	Vacancy 	Announcement 	No. 	FEMA-19-JLS-297346-DE, 	Grants
Management Specialist, GS-1109-13;
3. On or around December 23, 2019, Complainant was notified of his non-
selection for job Vacancy Announcement No. FEMA-20-TT-328248-MP,
Grants Management Specialist, GS-1109-13; and
4. On June 12, 2019, Complainant was notified of his non-selection for job
Vacancy 	Announcement 	No. 	FEMA-19-TLT-289376-DE, 	Grants
Management Specialist, GS- 1109-13.
On 	November 	4, 	2020, 	Complainant 	requested 	a 	hearing 	before 	an 	EEOC
Administrative Judge (AJ). On October 12, 2021, the parties entered into a
settlement agreement and the AJ dismissed the complaint because Complainant’s
claims were resolved.
The settlement agreement provided, in pertinent part, that:
SECTION III. AGENCY'S COMMITMENTS:
The Agency is in the process of developing a standing register which
will be kept in a centralized location on the USAJOBS platform. This
standing register will allow eligible, noncompetitive applicants to
submit their resume which will remain on file for one year. At that
time, the [Complainant] must resubmit with updated documentation.
The posting of the standing register is expected to be viewable on
2 Complainant’s reprisal allegation applies to Claim 4 only.

2024001407	3
USAJOBS as of December of 2021. The Talent Acquisition Division
(TAD) will contact the Complainant when the standing register
procedure is implemented. TAD staff will aid the Complainant in the
application process for the standing register and ensure that his
resume and related documentation is maintained within the standing
register for one year.
. . .
SECTION VII. COMPLIANCE PROCEDURE:
A. The Agency will exercise due diligence to execute all terms of the
Agreement and monitor the processing of its obligations. However,
a precise date for the completion of the Agency's obligations is
impossible to predict. Complainant expressly agrees not to initiate
any enforcement proceedings pursuant to the Agreement sixty (60)
days following the execution date of the Agreement (the "Grace
Period"). Complainant shall direct inquiries concerning the status of
the agreement to the Agency Representative.
By email to the Agency dated August 19, 2022, Complainant alleged that the Agency
was in breach of the settlement agreement (Agreement) and requested that the
Agency implement its terms. Specifically, Complainant alleged that the Agency
breached Sections III and VII of the Agreement because it failed to develop a new
register for Schedule A applicants during a 60-day grace period following execution
date of the Agreement, contact him to notify him of the completion, and assist him
with applying for the new register.
On August 30, 2022, Investigation & Compliance Manager replied to Complainant’s
email. She notified him that the new register was “still in development” and the TAD
reported that it would be completed by the end of September. In response,
Complainant requested that Investigation & Compliance Manager notify him of the
status of the new register by September 30, 2022. He indicated that he would file a
formal EEO complaint if there was “continued breach after giving the Agency a final
opportunity to comply.”

2024001407	4
On September 28, 2022, Investigation & Compliance Manager forwarded a letter to
Complainant. The letter was from the EEO Unit Chief, and it was dated September
21, 2022. In the letter, the EEO Unit Chief informed Complainant that the new
register was “still in development” and that the Agency’s obligation to assist him
with applying for the new register had “not yet been triggered.”
The EEO Unit Chief said the TAD hoped to complete the new register by the end of
September, and that TAD would contact him once the register was implemented to
assist him with the application process.
On October 14, 2022, Investigation & Compliance Manager sent the EEO Unit Chief
an email. Investigation & Compliance Manager stated the TAD reported that it had
completed the new register in mid-September and contacted Complainant to assist
him with the application process. The October 14, 2022, email conflicted with the
letter that she forwarded Complainant two weeks prior dated September 21, 2022,
notifying him that the new register was “still in development.” 	The October 14,
2022 email also conflicted with Complainant’s declaration that the TAD never
notified him of the completion or assisted him with applying for the new register.
In its October 18, 2022 final decision, the Agency dismissed Complainant’s breach
allegations, finding that it complied with its obligations under the Agreement. The
Agency stated that the Agreement did not include a guarantee that it would complete
the new register by a specific date. Relying on the Investigation & Compliance
Manager’s October 14, 2022 email, the Agency declared that in mid-September
2022 it had fulfilled its obligations. The Agency stated that in mid-September 2022,
it completed the new register, notified Complainant of the completion, and assisted
him with applying for the new register.
Although the Agreement did not specify when the new register would be completed
absent specified time frames for performance, the Commission expects that the terms
of a settlement agreement will be implemented within a reasonable period of time.
See Garcey v. U.S. Postal Serv., EEOC Appeal No. 01A24396 (Sept. 3, 2003);
Parker v. Dep’t. of Def., EEOC Request No. 05910576 (Aug. 29, 1991).

2024001407	5
We noted in our decision that we could not rely on the sole evidence provided by the
Agency (i.e., the Investigation & Compliance Manager’s October 14, 2022 email
asserting that the TAD completed a new register in mid-September) in reaching the
conclusion that the Agency complied with the settlement agreement because it
directly contradicted the September 21, 2022 letter that she sent to Complainant
notifying him that the new register was “still in development.” We specifically noted
that there is no other evidence in the record that shows that the TAD ever completed
the new register, and Complainant had correctly pointed out that the EEO Unit Chief
admitted to non-performance in his letter.
In its reconsideration request, the Agency produces October 13, 2022 and October
14, 2022 emails for the first time to boost its original argument that it had complied
with the Settlement Agreement. The Commission will not consider new evidence on
appeal, unless the party attempting to submit the new evidence affirmatively shows
that the evidence was not reasonably available prior to or during the investigation.
EEO Management Directive 110 at Ch. 9, § VI.A.3 (citing 29 C.F.R. § 1614.404(b)).
Here, the Agency submitted on appeal new evidence that was not previously part of
the record. The Agency has not demonstrated that this evidence was not reasonably
available 	earlier. 	Therefore, 	we 	decline 	to 	consider 	this 	new 	evidence. 	See
Complainant v. U.S. Postal Serv., EEOC Appeal No. 01A54872 (Nov. 10, 2005).
Accordingly, 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. 2023000796 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
Within 30 calendar days of the date this decision is issued, the Agency shall notify
Complainant of his option to either:
(a) return to the status quo prior to the signing of the October 12, 2021,
settlement agreement and having his underlying complaint reinstated from
the point processing ceased, or

2024001407	6
(b) having 	the 	terms 	of 	the 	October 	12, 	2021 	settlement 	agreement
specifically enforced.
The Agency shall also notify Complainant that he has fifteen (15) calendar days from
the date of his receipt of the Agency's notice within which to notify the Agency of
his choice.
A copy of the Agency's notice to Complainant regarding his options, as well as a
copy of either the correspondence reinstating the complaint for processing or the
correspondence notifying complainant that the terms of the agreement will be
specifically enforced and evidence of such performance must be sent to the
Compliance officer, as referenced below.
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.

2024001407	7
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 (P0124)
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 their 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:
T. Gimbrere 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 14, 2026
Date