[Redacted], Lyda F., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Jan 4, 2023

Appeal No. 2021001771 (E.E.O.C. Jan. 4, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lyda F.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Request No. 2022004615 Appeal No. 2021001771 Hearing No. 570-2016-00279X Agency Nos. DEA-2015-01407 & DEA-2016-01045 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021001771 (July 26, 2022). 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). At the time of events giving rise to this complaint, Complainant worked as a Project Management Specialist (PMS), GS-12, in the Administrative Operations Section, Property Management Unit (SAOP) at Agency Headquarters in Arlington, Virginia. On April 27, 2015, Complainant filed an EEO complaint (identified as Agency No. DEA-2015-01407) alleging that the Agency, between 2013 and 2015, subjected her to discrimination and harassment on the 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. 2022004615 2 bases of disability (30% Disabled Veteran, Reflex Sympathetic Dystrophy (RSD), Sciatica, back and ankle injury) when: 1. between March and December 2014, and in January 2015, management denied Complainant’s request for reasonable accommodation (teleworking eight hours per day and making adjustments to allow her to do so); 2. since October 22, 2014, management reduced Complainant’s work hours and duties and denied her request for teleworking eight hours per day by taking away her essential duties; 3. in September 2014, management gave Complainant a “Successful” performance rating, citing absences as impacting her rating; 4. on October 27, 2014 and in February 2015, management prevented Complainant from attending trainings and meetings; 5. in 2013 and 2014, the Section Chief (S1) made hostile comments about Complainant and her disability in the presence of coworkers, including calling Complainant her “ghost employee” due to her absences; and 6. in 2013 and 2014, management would not allow Complainant to make up missed time, but her coworkers were allowed to do so. Subsequently, Complainant filed another EEO complaint (identified as Agency No. DEA-2016- 01045) reiterating her allegations of harassment, denial of reasonable accommodation, and adding that the Agency discriminated against her on the bases of disability and reprisal for prior EEO activity when, since August 2015: 7. management required Complainant to submit all UFMS document reviews to the SAOP inbox, unlike her peers, and then did not give Complainant credit for her work; 8. the Secretary, who is a contractor, changed and signed Complainant’s time and attendance without her knowledge and management approved it; 9. management left Complainant out of meetings, peer discussions, emails, and decisions; 10. management failed to timely process Complainant’s step increase; 11. management caused deliberate delays in processing of Complainant’s workers’ compensation claims; 2022004615 3 12. management attempted to change Complainant’s duty hours; and 13. management failed to respond to her request for an SNS laptop and Agency telephone. The Agency accepted Complainant’s two complaints and consolidated them for EEO investigation and further processing. Following the investigation, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. The assigned AJ issued a decision by summary judgment on September 30, 2020, concluding Complainant failed to establish discrimination or unlawful retaliation as alleged. The Agency failed to issue a final order within 40 days of the AJ’s decision. Consistent with 29 C.F.R. § 1614.109(i), if an agency does not issue a final order within 40 days of receipt of the AJ’s decision in accordance with 1614.110, then the decision of the AJ becomes the final action of the agency. Complainant filed an appeal of the AJ’s decision, to which the Agency filed opposition. In EEOC Appeal No. 2021001771, the Commission affirmed the Agency’s final order which implement the AJ’s summary judgment decision finding no discrimination, harassment, or denial of reasonable accommodation. In her request for reconsideration, Complainant included a decision by the Merit Systems Protection Board (MSPB) regarding events which occurred when the Agency discontinued Complainant’s telework in March 2018 and terminated her effective October 15, 2018. The MSPB Administrative Judge found that the Agency failed to show that the discontinuation of Complainant’s reasonable accommodation constituted an undue hardship. We note however, that the events and issues raised before the MSPB involve different dates and series of events raised herein within the two EEO complaints at issue. Upon review, we find that, in the instant request for reconsideration, nothing that Complainant has submitted supports a determination that the prior decision affirming the AJ’s decision without a hearing was in error. 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), Chap. 9 § VI.A (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. 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. 2021001771 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2022004615 4 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 January 4, 2023 Date