[Redacted], Odilia M., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce, (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Feb 6, 2023

Appeal No. 2021003213 (E.E.O.C. Feb. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Odilia M.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce, (National Oceanic & Atmospheric Administration), Agency. Request No. 2022004744 Appeal No. 2021003213 Agency No. 54-2020-00203 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Odilia M. v. Department of Commerce, EEOC Appeal No. 2021003213 (July 28, 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). 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. 3 2022004744 During the relevant time, Complainant worked for the Agency as a Management and Program Analyst in Silver Spring, Maryland. On April 21, 2020, Complainant filed a formal EEO complaint, claiming discrimination based on disability, age, and in reprisal for prior protected activity when: 1. On an ongoing basis since the summer of 2018, Complainant’s supervisor (Supervisor) has questioned her integrity regarding her performance, scrutinized and micromanaged her work, interfered with the performance of her work, and failed to provide her with needed assistance and guidance. 2. In FY 2018, Supervisor failed to formally issue Complainant a performance plan or performance appraisal. He instead issued her a blank performance plan and asked her to sign it, advising that he was “behind” so she should sign the blank document unless she felt the need to discuss her rating and comments. 3. On April 5, 2019, Supervisor assigned Complainant to serve as the “Closeout” Contracting Officer’s Representative (COR) without formally issuing her a position description and without discussing it with her. She describes this role as entailing “basically low-level ‘scut’ work” involving closing out a “tremendous backlog” of contracts that other CORs had failed to close out. This caused her to feel demoralized and as though she was not a valued member of the COR team. 4. On April 9, 2019, Supervisor removed Complainant from performing all of her standard COR duties before she was “voluntold” by Supervisor to participate in a 50% detail to OCIO’s Privacy Office. However, when OCIO management disapproved this detail, Supervisor did not reassign her customers and vendors back to her, instead expecting her to continue performing as the Closeout COR. In addition, he apprised Complainant that the detail had been disapproved by leaving her a rambling voicemail message, omitting important information and resulting in her feeling “extremely deflated”. 5. In December 2019, Supervisor issued Complainant a score of 48 on her FY 2019 performance appraisal, failing to account for an eight-week period during which she was unable to work while recovering from surgery, as well as numerous other days she was on sick leave associated with her increasing health concerns. Due to Supervisor’s failure to formally issue her a performance plan and rating in FY 2018, she was unable to compare her ratings over the two-year period, although she “seem[s] to recall [her] score for FY18 was 79”. 6. After Supervisor met with Complainant to apprise her of her FY 2019 performance appraisal score, he failed to provide her with a copy of her performance appraisal for her signature. When she later discovered it in a Google Personnel file, she immediately requested that Supervisor grant her a waiver of the time limitation to submit a grievance against her rating, but Supervisor never responded. 7. On an unspecified date, Supervisor failed to approve Complainant’s application for participation in the Agency’s Leave Donor Transfer Program. 4 2022004744 8. On an ongoing basis, Supervisor asked Complainant many questions about her health and wellbeing in an effort to “begin edging [her] out,” but failed to provide her with any status updates regarding her application for disability retirement benefits. This resulted in Complainant remaining in a leave without pay (LWOP) status and exhausting her leave entitlement under the Family and Medical Leave Act (FMLA) while her disability retirement application was delayed. 9. Over the course of a one-year period beginning in or around March or April 2019, Supervisor ignored and delayed responding to Complainant’s request for full-time telework as a reasonable accommodation. In doing so, Supervisor ignored both Complainant and the Reasonable Accommodation Coordinator (RAC-1), then initially denied her request in December 2019, which required Complainant to submit a request for reconsideration. It was only at that point that Supervisor “[be]grudgingly” approved her request. Following an investigation, Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f). The Agency issued a final decision, finding no discrimination or unlawful retaliation was established. Complainant appealed. In Appeal No. 2021003213, the Commission affirmed the Agency’s final decision, also concluding the evidence did not establish that discrimination or unlawful retaliation occurred. We have reviewed the arguments raised by Complainant in the instant request for reconsideration and determine that there is no reason to disturb the Commission’s prior decision. Complainant raises arguments which either were previously raised, or which could have been raised below. 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. 2021003213 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 5 2022004744 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 February 6, 2023 Date