Nicki D.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Mar 28, 2019

2019000120 (E.E.O.C. Mar. 28, 2019)

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

Nicki D.,1
Complainant,

v.

Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Request No. 2019000120

Appeal No. 0120172078

Hearing No. 480-2014-00341X

Agency No. FBI201200290

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172078 (September 18, 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).

Complainant worked as a Supervisory Foreign Language Program Coordinator, GS-0301-12, at
the Agency’s facility in Las Vegas, Nevada. Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (African American), age (51), and
reprisal when :(1) on June 5, 2012, Complainant was placed on a 90-day performance
improvement plan; (2) on November 18, 2012, Complainant received a rating of “unacceptable”

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 her performance appraisal report; and (3) on March 28, 2013, she was terminated from
employment with the Agency.

Our prior appellate decision affirmed the Equal Employment Opportunity Commission
Administrative Judge’s (AJ) decision by summary judgment which found in favor of the Agency,
concluding Complainant failed to prove her discrimination claims. In his decision, the AJ found
that Complainant failed to produce evidence that the Agency’s proffered legitimate reasons for
its actions were a pretext for discrimination. The AJ also found that Complainant failed to prove
her harassment claims.

In her request for reconsideration, Complainant notes that her attorney passed away, states that
they had intended to pursue a hearing, reiterates arguments made on appeal, and expresses her
disagreement with the previous decision and attaches a brief and evidence that she previously
submitted. 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. 0120172078 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.
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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

March 28, 2019
Date