Complainant,v.Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Jul 22, 2015

05-2015-0231-0500 (E.E.O.C. Jul. 22, 2015)

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

,
Complainant,

v.

Joshua Gotbaum,
Director,
Pension Benefit Guaranty Corporation,
Agency.

Request No. 0520150231

Appeal No. 0120143006

Agency No. 14030F

DECISION ON REQUEST FOR RECONSIDERATION
The agency timely requested reconsideration of the decision in EEOC Appeal No. 0120143006
(January 15, 2015). EEOC Regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision 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 our prior decision, we reversed the Agency’s dismissal of Complainant’s complaint. We
found that Complainant had made sufficient allegations that the Agency's actions created a
"chilling effect" on his and other employees' pursuit of the EEO complaint process to state a
cognizable claim of unlawful retaliation. We also found that Complainant was not making an
impermissible collateral attack on the grievance/arbitration process.

In its request for reconsideration, the Agency argues, in error, that our prior decision found
that “Complainant sufficiently alleged a cognizable claim of unlawful per se retaliation.” As
noted above, that is not what the Commission found.1

1 Complainant also incorrectly interpreted our prior decision.
Upon further review of the Agency’s
brief, we find that its arguments concern the merits of Complainant’s allegations. Those
arguments are misplaced here. Finally, Complainant’s reply to the Agency’s request for
reconsideration raises issues concerning intrusion and conflict of interest. Those issues are
beyond the scope of this request. However, on remand, both parties are expected to comply
with Management Directive 110 and preserve the integrity of the EEO process.
0520150231

2

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. 0120143006 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request. The Agency shall comply with the Order as set forth below.

The Agency is ordered to process the remanded claim in accordance with 29 C.F.R.
§ 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the
remanded claims within thirty (30) calendar days of the date this decision becomes final. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
ORDER
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION

(K0610)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

0520150231

3

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 22, 2015