Melanie J. Matchett,1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Sep 17, 2020

2020002988 (E.E.O.C. Sep. 17, 2020)

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

Melanie J. Matchett,1
Complainant,

v.

David Bernhardt,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Request No. 2020002988

Appeal No. 2019003636

Hearing No. 550-2018-00530X

Agency No. DOI-BLM-18-0077

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 2019003636 (February 19, 2020).
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).

On March 19, 2017, Complainant was hired by the Agency as a Lead Range Technician at the
Agency’s Ely District Office in Ely, Nevada, subject to one-year probationary period.

1 We note that Complainant requested that we not use a pseudonym, and we will defer to her
request.
2 2020002988

On January 11, 2018, Complainant filed a formal EEO complaint alleging discrimination by the
Agency based on sex (female) and in reprisal for protected EEO activity (prior EEO activity) when:

(1) on November 17, 2017, she was denied training for two courses; and

(2) on November 30, 2017, she was issued a Termination During Probationary Period
letter.

After its investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of right to request a hearing before an Equal Employment Opportunity Commission
(EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The AJ
subsequently issued a decision by summary judgment in favor of the Agency.

In his decision, the AJ noted that Complainant was nominated to receive a combination of class of
“crew boss” and “engine boss” training which was scheduled, respectively, for the fall of 2017
and the spring of 2018. The AJ noted that Complainant’s training was not denied, but instead was
postponed. Specifically, the AJ noted that the training was postponed to the following spring by
management “because a burn was in progress, work needed to be addressed at the Seed Warehouse,
and the training classes, themselves, were non-mandatory.” Furthermore, the AJ noted that no
other probationary employees attended crew boss and engine boss training in the fall of 2017.

Regarding Complainant’s employment termination, the AJ noted that Complainant was terminated
during her probationary period for failure to follow instructions, misconduct, lack of
professionalism, and insubordination. Specifically, the AJ noted that in early November 2017,
Complainant failed to sign an employment personnel document requested by the Program and
Management Analyst. The form was needed to allow Complainant’s background check to
proceed. Complainant also failed to return the Assistant Manager’s call about the matter.

The AJ also noted that at about this same time Complainant refused her supervisor’s request that
she participate in a prescribed fuel burn that was happening but she rejected this assignment
claiming she would be “unavailable.” without providing a reason.

The Agency issued its final order adopting the AJ’s finding that Complainant failed to provide that
the Agency subjected her to discrimination as alleged. An appeal followed. In EEOC Appeal No.
2019003636, the Commission affirmed the Agency’s final decision adopting the AJ’s finding of
no discrimination. Consequently, Agency postponed Complainant’s training classes and
management came to an agreement to remove Complainant during her probationary period.

In her request for consideration, Complainant raises the following separate arguments: the record
was inadequately developed for summary judgment; the AJ’s decision involved a clearly erroneous
interpretation of material fact; and she claimed allegations of fraud and conspiracy against the
Program Management Analyst. We have, however, thoroughly reviewed the record in the prior
decision, including Complainant’s appellate arguments therein. The matters raised in the instant
request either were raised below, or readily could have been raised.
3 2020002988

We emphasize that a request for reconsideration is not a second appeal to the Commission. See
EEO MD-110, Ch. 9, § VII.A. 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. Complainant
has not done so here.

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. 2019003636 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

September 17, 2020
Date