Emery F.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation, Agency.Download PDFEqual Employment Opportunity CommissionDec 8, 20170520170498 (E.E.O.C. Dec. 8, 2017) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emery F.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation, Agency. Request Nos. 0520170498 0520170499 Appeal Nos. 0120152076 0120152172 Agency Nos. 2011-24040-RITA-02 2011-23703-RITA-02 DECISION ON REQUESTS FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal Nos. 0120152076 and 0120152172 (June 22, 2017). 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 the underlying complaints, Complainant alleged that he was discriminated against based on reprisal (his prior EEO activity), when on or about December 6, 2010, he received an unfair performance appraisal. Complainant also alleged unlawful harassment on the bases of his race (Caucasian); age (55 years old); and sex (male) when: (a) in March 2011, his supervisor told him during his midterm performance review that “for the sake of his professional career, you need to 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. 0520170498 0520170499 2 understand that, if you push management, management will push back;” (b) on March 28, 2011, his supervisor falsely introduced a coworker of his as the head of the BTS Safety Program; (c) in April 2011, his supervisor responded in an email asking him to refrain from rude and disrespectful communications and stated that unacceptable behavior can be grounds for disciplinary action; (d) in May 2011, he was prevented from taking an elective training course because it had filled up while his supervisor was waiting to hear from upper management on whom he should contact; (e) on June 21, 2011, after he had provided his supervisor with his performance appraisal input, he asked him to provide more details on any presentations or written materials that he did for his various committees; (f) on July 14, 2011, and in a revision dated July 27, 2011, he was given: an unsatisfactory performance rating in the critical Interpersonal Relationships/Teamwork category; mediocre (a rating of 3 on a 1-5 scale) ratings in five other categories; an overall rating of 1; in addition, management made false statements in the narrative portions of his appraisal, e.g., that he had engaged in a “shouting match” with another employee; and (g) on August 10, 2011, he was informed that an Official Reprimand, dated July 20, 2011, had been placed in his file for “continued unprofessional behavior in the workplace.” Complainant requested a hearing before a Commission Administrative Judge (AJ). The AJ issued summary judgment in favor of the Agency. Our previous decision affirmed the AJ’s conclusions that Complainant failed to present evidence of discriminatory animus with respect to Complainant’s harassment claim and failed to present sufficient evidence to show that the Agency’s legitimate non-retaliatory explanation for the performance review was a pretext or otherwise motivated by retaliatory animus. 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. Aside from his assertions that the previous decisions were incorrect, Complainant has not shown with specificity how he meets the criteria for a request for reconsideration. 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 Nos. 0120152076 and 0120152172 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 0520170498 0520170499 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 December 08, 2017 Date Copy with citationCopy as parenthetical citation