[Redacted], Cyrus A., 1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Aug 27, 2020

Appeal No. 0120182580 (E.E.O.C. Aug. 27, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cyrus A.,1 Complainant, v. Rick Perry, Secretary, Department of Energy, Agency. Request No. 2020001733 Appeal No. 0120182580 Agency No. 160033AL DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120182580 (November 7, 2019). 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). During the period at issue, Complainant worked as an Intelligence Operations Specialist/Liaison Officer (LNO) NQ-0132-03, for the Agency’s National Nuclear Security Administration in Albuquerque, New Mexico. On December 14, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him in reprisal for prior protected activity when: 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. 20200017332 1. During a staff meeting on October 1, 2015, Complainant’s first- and second-line supervisors informed him that his (and his coworkers’) positions as Liaison Officers would be dissolved, and the dissolving of the positions was pending imminent final upper-management approval; 2. On October 22, 2015, Complainant received an email from his first-line supervisor, informing him that he would be restricted in his Liaison Officer work-related travel and activities; and 3. On or about April 20, 2016, his position as Liaison Officer was terminated at the Office of Secure Transportation Agent Operations Eastern Command (AOEC), and he was involuntarily reassigned as a Training Specialist at the AOEC Training Facility. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for a Decision Without a Hearing. Complainant did not respond. On April 5, 2018, the AJ issued a decision by summary judgment in favor of the Agency. In her decision, the AJ noted that well before Complainant filed his first complaint in April 2015, the Agency had experienced a change in leadership on October 1, 2014, when it hired a supervisor as the new Liaison Branch Chief (Chief) and he initiated a review of the Liaison Outreach Program under which Complainant worked. During the relevant period, Complainant and his co-workers were informed that significant changes were forthcoming. On September 30, 2015, there was talk about the impending reorganization, circulating among employees because the Agency had determined that the manner in which the Liaison Officers had been conducting business was inefficient and costly, and that a reorganization would result in savings to the Agency. Complainant was placed on notice that the Chief had recommended him be reassigned from his Liaison Officer position to a Training Specialist position without loss of pay or change in benefits. The AJ concluded that Complainant did not prove that Agency management’s explanation was pretext masking retaliatory animus. In EEOC Appeal No. 0120182580, the Commission affirmed the Agency’s final order adopting the AJ’s finding no unlawful retaliation. In his request for reconsideration, Complainant expresses his disagreement with the decision in EEOC Appeal No. 0120182580. Specifically, Complainant, through his attorney, argues that his complaint and the EEO Counselor’s Report addressed the Chief’s “threatening and hostile behavior.” He claims that the AJ ignored the relevant information and “this whole thing was about the hostile behavior and resulting reprisal that we endured. Being reassigned was just the final nail in the coffin.” Complainant raised in essence the same arguments previously considered by the AJ and our previous appellate decision. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. 20200017333 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. 0120182580 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 August 27, 2020 Date