Kylee C.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 29, 2017

0520170103 (E.E.O.C. Mar. 29, 2017)

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

Kylee C.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Request No. 0520170103

Appeal No. 0120162513

Agency No. ATL-15-00792-SSA

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120162513 (November 1, 2016). 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 her underlying complaint, Complainant claimed that she was subjected to a hostile work
environment and discriminated against on the bases of her race (African-American), age (43),
and in reprisal for her prior EEO activity under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. § 621 et seq. when:

1. Beginning on or about February 2015 through September 8, 2015, Complainant was
subjected to a hostile work environment, including undermining her authority with one
of her subordinates, management’s tolerance of her subordinate employee’s

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.
0520170103

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intimidation, insults and threats toward her, negative statements in her mid-year
performance review, and the denial of a replacement computer keyboard;

2. On June 28, 2015, Complainant was reassigned to a less-than-desirable unit; and

3. On July 28, 2015, Complainant was given an “Official Counseling Session,” which was
placed in her personal file.

In its final decision, the Agency determined that no discrimination occurred. With regard to
claim (1), the Agency stated that the alleged incidents failed to rise to the level of severity or
pervasiveness necessary to create a hostile work environment. As for claim (2), the Agency
explained that Complainant’s temporary reassignment as Supervisor of the T16 Unit was based
on a determination that she was the best choice due to her experience and operational needs.
The Agency noted that although Complainant claimed the reassignment was reprisal, she did
not object to the reassignment at the time and offered no rebuttal to management’s testimony.
With respect to claim (3), the Agency observed that Complainant’s Supervisor issued the
counseling to Complainant based on her finding that Complainant used the District Manager’s
office without authorization and intimidated other staff. The Agency stated that Complainant
claimed that the counseling constituted reprisal for her EEO activity. However, the Agency
determined that the counseling session was warranted based on the manner in which
Complainant interacted with the employees rather than the subject matter of the interaction.

In the previous appeal decision, the Commission observed that even if it was assumed that
Complainant established a prima facie case of discrimination, the Agency articulated
legitimate, nondiscriminatory reasons for the actions at issue. The Commission found that
Complainant failed to establish that the Agency’s stated reasons for its actions were pretext
intended to mask discriminatory motivation. In terms of claim (3), the Commission noted that
Complainant claimed that she received a counseling memorandum resulting from a meeting she
had with subordinate employees concerning her EEO complaint. However, the Commission
found that Complainant had not engaged in protected activity given that subordinate employees
complained to management that they felt intimidated by Complainant to support her EEO
complaint or face reprisal. With regard to Complainant’s claim of a hostile work environment,
the Commission found that although Complainant cited various incidents, Complainant
produced no evidence to establish that her age, race, or prior EEO activity was a factor in any
of the relevant actions.

In her request for reconsideration, Complainant contends that our prior decision should be
reversed because it involved a clearly erroneous interpretation of material fact or law and it
will have a substantial impact on the policies, practices, or operations of the agency and the
EEO process. However, Complainant merely reiterates contentions that were considered in the
previous decision. We note that a “request for reconsideration is not a second appeal to the
Commission.” E.g., Lopez v. Dep’t of Agriculture, EEOC Request No. 0520070736 (Aug.
20, 2007); EEO Management Directive for Part 1614 (EEO MD-110), Chap. 9, §VII.A. (Aug.
5, 2015). Rather, a reconsideration request is an opportunity to demonstrate that the appellate
0520170103

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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. 0120162513 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

March 29, 2017
Date