U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stuart M.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency. Request No. 2021001928 Request No. 2021000275 Appeal No. 2019001785 Agency No. ATF-2015-01774 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Stuart M. v. Dep’t of Justice, EEOC Request No. 2021000275 (December 29, 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). For the reasons set forth below, Complainant’s request is DENIED. On September 17, 2020, the Commission issued a decision concerning the subject complaint in EEOC Appeal No. 2019001785, which, in part, vacated the Agency’s finding of no discrimination and remanded for a supplemental investigation Complainant’s claim that the Agency subjected him to discrimination on the basis of disability (posttraumatic stress disorder) when the Agency took the following actions: 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. 2021001928 2 4. On May 22, 2015, management told him he had to respond to whether he would accept or decline a lower-grade position of Investigative Analyst, GS- 1805-07, by June 1, 2015; and 7. On May 11, 2015, management forced him to apply for disability retirement or take a downgrade to the position of Investigative Analyst, GS-07.2 The supplemental investigation was ordered because the Commission found no evidence in the record to corroborate the Agency’s determination that there were no vacant positions in the 1811 law enforcement series to which Complainant could have been assigned, or that it offered Complainant lower graded GS-7/9 Investigative Analyst positions only after no comparable vacant position could be found. In remanding the complaint, the decision also directed the Agency to develop Complainant’s claim that he was constructively discharged. On October 14, 2020, the Agency filed a request for reconsideration of the appellate decision. The Agency argued that: (1) Complainant abandoned his constructive discharge claim “during the administrative litigation because he specifically informed the Chief Administrative Judge that he was not pursuing the claim”;3 (2) the Commission erred in finding that discovery conducted before the Administrative Judge did not describe the extent to which the Agency conducted a search for a vacant, funded position; and (3) “in light of the extensive discovery that [was] in possession of [Complainant], the Commission improperly placed the burden on the Agency to establish that it [was] more likely than not that there were vacancies during the relevant time period into which [Complainant] could have been reassigned.” In support of its request, the Agency submitted over 400 pages of documents that were generated during discovery but not provided on appeal. In Stuart M. v. Dep’t of Justice, EEOC Request No. 2021000275 (December 29, 2020), the Commission denied that Agency’s request because it failed to meet the criteria of 29 C.F.R. § 1614.405(c). Specifically, the previous decision found that the Agency could not present new evidence as a basis for requesting reconsideration, and that the previous decision was properly decided based on the evidence available to the Commission at the time; nevertheless, in the interest of administrative economy, the Commission exercised its discretion to reopen the matter on its own motion to consider the Agency’s newly submitted evidence. According to the Commission, the new evidence presented by the Agency addressed the evidentiary deficiencies noted in EEOC Appeal No. 2019001785, and as such a remand for a supplemental investigation was not necessary. 2 These are the only two claims (plus the constructive discharge claim discussed herein) at issue in the Complainant’s instant request to reconsider our prior decision. Our prior decision in EEOC Appeal No. 2019001785 found no discrimination on all other claims in the complaint. Complainant did not request reconsideration of the decision in EEOC Appeal No. 2019001785 3 Complainant initially requested an administrative hearing, but later withdrew his request and asked for a final decision from the Agency. 2021001928 3 Upon review of the Agency’s documentation, our previous decision in EEOC Appeal No. 2021000275 initially found that Complainant expressly waived his constructive discharge claim. Additionally, the decision found that the Agency conducted a good faith effort to search for vacant, funded positions for Complainant, including offering him the opportunity to find positions that he wanted. However, these efforts were unfruitful due to Complainant’s very general resume and his geographic restrictions. Finally, the previous decision found that the Agency’s offer of two Investigative Analyst positions, was an effective offer of accommodation, that was enough to meet its legal obligations under the Rehabilitation Act. In his instant request, Complainant does not address the factual or legal conclusions that were set forth in our previous decision. Instead, he argues that the previous decision should be reconsidered because: (1) the Commission violated his Fifth Amendment right to due process by finding facts in this matter, in the interest of its administrative convenience, without any regularized process to obtain the evidence it asked for in this matter; and (2) the Commission wrongly allowed the Agency to introduce new evidence at the appellate level to support its position regarding the claims without requiring an affirmative showing it was previously unavailable. We find that Complainant did not provide any argument or evidence that warrants granting his request. The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). 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. As noted by the previous decision, the new evidence presented by the Agency, which was already generated during discovery, addressed the evidentiary deficiencies in the record that were noted in EEOC Appeal No. 2019001785 and made a supplemental investigation unnecessary. Therefore, based on the specific facts of this case, we find the Commission did not abuse its discretion to reopen any decision that it issues when it found that new evidence rendered the prior remand for a supplemental investigation unnecessary. We also note that Complainant never questioned the accuracy of this evidence, nor did he argue that it was unavailable to him.4 4 Complainant argued that he did not have the ability to respond to the new evidence, but as noted earlier in this decision, Complainant, in his request, does not question a single factual or legal determination made by the previous decision; nor does he argue that the documentation was not already available to him via discovery. 2021001928 4 We also reject Complainant’s speculative argument that, “[t]housands of federal employees who have their cases heard by the Office of Federal Operations can now cite the Commission’s December 29th decision as precedent that they too can introduce new evidence without an affirmative showing that the evidence was previously unavailable in reliance upon the new ‘interest of administrative economy,’ exception to the prior rule.” As the previous decision clearly stated, in denying the Agency’s request, the Commission long ago eliminated the provision allowing for employees and agencies to submit new and material evidence as a basis for requesting reconsideration. Our previous decision was based solely on our determination that a supplemental investigation was unnecessary because the information we ordered the Agency to produce was already available and it would have served no purpose to remand this matter. 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 Request No. 2021000275 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. 2021001928 5 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 31, 2021 Date
