[Redacted], Carrol L., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 24, 2020

Appeal No. 2019000485 (E.E.O.C. Aug. 24, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carrol L.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Request No. 2020000804 Appeal No. 2019000485 Agency No. SF-17-0822-SSA DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019000485 (September 17, 2019). 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 previous decision, the Commission noted that Complainant worked as a Group Supervisor, GS-0105-13, at the Agency’s Office of Hearings Operations in Moreno Valley, California. On November 13, 2017, Complainant filed a formal EEO complaint alleging discrimination based on race (Black) and religion (Muslim) when: 1. On July 17, 2017, he was placed on a Performance Assistance (PA) plan; 2. On September 25, 2017, he was placed on an Opportunity to Perform Successfully (OPS) plan; and 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. 20200008042 3. From July 17, 2017 and ongoing, he was subjected to harassment (non-sexual) based on race and religion in terms of his placement on the PA and OPS plans, criticism of his work performance, and when he was given an inappropriate gift. After an investigation, the Agency, on August 3, 2018, issued a final decision finding no discrimination. Complainant filed an appeal from the Agency’s final decision. In response to Complainant’s appeal, the Agency informed the Commission that, on December 7, 2018, after the issuance of its final decision, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) concerning a performance-based demotion, which was effective November 25, 2018. Complainant claimed the demotion was motivated, in part, by his race and previous EEO activity. The Agency argued that Complainant’s appeal should be dismissed because the PA and the OPS plans were the preliminary steps that led directly to the demotion, and therefore should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(5), as a mixed case. The Agency also argued that claim 3 should be dismissed, pursuant to 29 C.F.R. § 1614.107(a)(l), for failure to state a claim. The previous decision found that Complainant’s appeal was not properly before the Commission because an MSPB Administrative Judge (AJ) had adjudicated all matters Complainant raised in his EEO complaint. Specifically, the Commission noted the MSPB, on July 12, 2019, issued an initial decision, which, among other determinations, found that Complainant’s demotion was not motivated by discriminatory animus. In reaching this determination, the previous decision found that an MSPB AJ already adjudicated Complainant’s discrimination claims involving the PA and OPS plans. Specifically, the previous decision noted the MSPB AJ’s determination that there was no evidence that management’s initiation and implementation of the OPS plan was pretext for discrimination based on Complainant’s race or reprisal for prior protected EEO activity. Similarly, the MSPB AJ found no discriminatory animus when management presented a commemorative President Trump gold coin to Complainant and his colleagues. Although Complainant’s demotion occurred after the Agency issued its final decision, the previous decision reasoned that once Complainant appealed his demotion to the MSPB, his complaint became mixed because it was a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(l). The decision noted the matters raised in Complainant’s EEO complaint regarding the Agency’s decision to place him on AP and OPS plans were preliminary steps in the Agency’s decision to demote Complainant. As a result, the MSPB AJ analyzed management’s issuance of the AP and OPS plans along with Complainant’s demotion. The decision noted that the MSPB AJ made determinations in his decision for all the discrimination claims included in Complainant’s EEO complaint. Consequently, Complainant’s appeal was dismissed. On request for reconsideration, Complainant does not specifically address the findings of the previous decision. He reiterates his claim that the Agency actions, including his subsequent demotion, constituted discrimination and harassment. In response to Complainant’s request, the Agency stated that Complainant, in October 2019, served a duplicate request for reconsideration on the Commission’s Los Angeles District Hearing Office, which treated it as a request for a hearing and docketed it as such. 20200008043 Although the Agency noted that it has moved to dismiss the hearing request, it argued that the Office of Federal Operations should dismiss Complainant’s request for reconsideration because “it does not make sense for both the Hearing Office and the Office of Federal Operations to be processing the same request.” The Agency contends that “the more appropriate process would be for the Hearing Office to process the request, and depending on what the Hearing Office does, have any appeals to the Office of Federal Operations from the Hearing Office decision.” At the outset, with respect to the Agency’s assertion that Complainant’s request for reconsideration should be dismissed because he also filed it with our Los Angeles District office, we note that the Commission’s records indicate that, on October 15, 2019, an EEOC AJ in the Los Angeles District office dismissed the matter, citing her lack of jurisdiction to review our previous decision. Accordingly, we find that the Agency’s request is now moot. Regarding Complainant’s request, we note that a “request for reconsideration is not a second appeal to the Commission.” EEO MD-110 at 9-18; see, e.g., Lopez v. Dep’t of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant did not meet the criteria for reconsideration. Moreover, to the extent he sought to challenge his demotion, we note that this issue is not properly before the Commission. Complainant was advised of his right to challenge the MSPB’s discrimination determination regarding his demotion, but he did not do so. 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. 2019000485 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. 20200008044 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, Director Office of Federal Operations August 24, 2020 Date