Clelia W.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Aug 9, 2018

0520180280 (E.E.O.C. Aug. 9, 2018)

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

Clelia W.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior,
Agency.

Request No. 0520180280

Appeal No. 0120180450

Hearing No. 540-2016-00184X

Agency No. DOI-BIE-15-0647

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180450 (January 31, 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 her underlying complaint, Complainant, who worked as an Elementary School Teacher, claimed
that the Agency discriminated against her on the bases of her age (61) and national origin (Navajo
tribal affiliation) when on February 13, 2015, her employment was terminated. Complainant was
removed for failure to pass the National Evaluation Series Exam Test, which was a state
requirement.

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 August 7, 2017, an EEOC Administrative Judge (AJ) dismissed the complaint with prejudice,
finding that the claims raised in Complainant’s challenge to her removal in her grievance and the
instant complaint were identical, and that the issue was addressed on the merits in her first and
second step grievances. The Agency subsequently issued its final decision adopting the AJ’s
dismissal of the complaint.

In our previous decision, the Commission affirmed the Agency’s final decision. We stated that
the grievance procedure under Complainant’s collective bargaining agreement allows for claims
of discrimination to be raised. We found that the instant complaint and the issues raised at step 1
and step 2 of the grievance process were identical – Complainant’s termination from employment.
Thereafter, Complainant filed the instant request for reconsideration.

In response, the Agency asserts that Complainant admitted that she filed a grievance under the
procedures outlined in her collective bargaining agreement. The Agency maintains that
Complainant has failed to address, let alone establish, that the Commission’s prior decision
involved a clearly erroneous interpretation of law or material fact or that the decision will
substantially impact the Agency’s policies, operations, or practices.

We observe that Complainant has not presented sufficient persuasive evidence in support of her
position. 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), at 9-18 (Aug. 5, 2015); 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. The record reveals that Complainant pursued the grievance process in a Step
1 filing on February 23, 2015, and a Step 2 filing on March 20, 2015. Complainant filed the instant
formal complaint on July 16, 2015. Complainant made an election to challenge her removal
through the negotiated grievance process of a collective bargaining agreement that permits claims
of discrimination to be raised in the negotiated grievance procedure. We discern no persuasive
argument or evidence in Complainant’s request for reconsideration that satisfy the criteria for
granting a request to reconsider.

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. 0120180450 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

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3
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 9, 2018
Date