Antwan N.,1 Complainant,v.Gina C. Haspel, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Apr 19, 2019

2019001366 (E.E.O.C. Apr. 19, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Antwan N.,1
Complainant,

v.

Gina C. Haspel,
Director,
Central Intelligence Agency,
Agency.

Request No. 2019001366

Appeal No. 0120182138

Agency No. 18-06

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120182138 (October 2, 2018). 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).

In the appellate decision, we affirmed the Agency’s procedural dismissal of two of Complainant’s
claims for failure to state a claim, and explicitly did not address the Agency’s dismissal of his
remaining claim because he did not challenge it.

In his request for reconsideration, Complainant argues that the Commission made a clearly
erroneous interpretation of material fact or law in dismissing the two referenced claims for failure
to state a claim.
Specifically, Claim 1 concerned the Agency’s calculation and payment of back pay covering July
30, 2013 to January 13, 2014, during which Complainant was on involuntary leave without pay

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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(LWOP) because of an adverse action against him, which was reversed by the Agency’s Office of
Security in January 2014. In our appellate decision, we found that it did not appear that
Complainant secured the reversal in the EEO process, and speculated it may have happened via a
Merit Systems Protection Board (MSPB) decision. We found this matter failed to state a claim
because Complainant was seeking to use the EEO complaint process to address remedies ordered
in another process, a collateral attack thereon.

Claim 3 involved Complainant learning on August 8, 2017, that the Agency erroneously
commented in his file that his employment status was: “subject’s employment was terminated on
[May 10, 2013].” In our appellate decision, we found this matter failed to state a claim because
Complainant was not harmed thereby, nor would it deter him or others from engaging in protected
activity.

On Claim 1, in his request for reconsideration, Complainant contends that he did not file an appeal
with the MSPB, and by statute the MSPB does not have jurisdiction over the Agency employees.
On appeal from the Agency’s dismissal, Complainant argued that in January 2014, “the Agency,
specifically the Office of Security (OS), reversed a personnel decision against…” him, giving rise
to the back pay at issue. In opposition to the appeal, the Agency argued that upon his return to
service, Complainant filed a claim with the Agency’s Office of Personnel Services (OPR) for back
pay pursuant to the Back Pay Act, and OPR processes all claims for back pay against the Agency.
It argued that the United States Court of Claims is invested with jurisdiction to hear such disputes
about back pay, and Claim 1 constituted a collateral attack on the OPR process.

While in our appellate decision we incorrectly speculated that the MSPB reversed the personnel
action which gave rise to the back pay at issue, this was not material since Claim 1 still constitutes
a collateral attack – against OPRs determination. We make this finding because Complainant
represents that it was the Agency’s Office of Security, i.e., not the EEO forum, that reversed the
personnel action giving rise to the back pay. Given these circumstances, we find Complainant’s
back pay claim is not separately actionable in the EEO forum. Nor has Complainant shown that
the finding that Claim 3 fails to state a claim is clearly erroneous.

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. 0120182138 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
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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

April 19, 2019
Date