[Redacted], Trey H., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Mar 9, 2023

Appeal No. 2022004423 (E.E.O.C. Mar. 9, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trey H.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Request No. 2023000054 Appeal No. 2022004423 Agency No. 22-07-057 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Trey H. v. Dep’t of Labor, EEOC Appeal No. 2022004423 (August 30, 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). During the period at issue, Complainant was a federal retiree/annuitant whose last date of employment at the Agency’s Office of Federal Contract Compliance (OFCCP) was December 31, 2021. On March 30, 2022, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (African American), color (light), sex (male), age (1963), and in reprisal for prior EEO activity when, on March 2, 2020, he was informed that management did not provide his personnel file to the U.S. Office of Personnel Management (OPM) until February 14, 2022, which delayed receipt of his monthly (February and March) retirement annuity. 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. 2023000054 2 In its June 6, 2022, decision, the Agency dismissed the instant formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency stated that Complainant should have raised his allegations through the OPM retirement process. Complainant appealed. In EEOC Appeal No. 2022004423, the Commission affirmed the Agency’s final decision dismissing the complaint. The prior decision found that, upon review of the formal complaint, Complainant, in essence, claimed that Agency actions had an effect upon the timeliness of retirement annuity payments. The prior decision noted that the Commission has previously held that a claim related to the untimely processing of retirement paperwork does not state a claim citing Keisu v. Department of Veterans Affairs, EEOC Appeal No. 01A51312 (July 22, 2005). Moreover, the prior decision noted that, to the extent Complainant alleged a claim of harassment, even if proven to be true, this claim was not sufficiently severe or pervasive to alter the conditions of employment. See Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Finally, the prior decision noted that the claim was not of a type of action reasonably likely to deter Complainant or others from engaging in prior protected activity. See Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Therefore, the prior decision affirmed the Agency’s final decision dismissing the matter pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. In the instant request for reconsideration, Complainant argues that the Agency’s action resulted in a present harm or loss resulting in delay of his monthly retirement annuity. Complainant asks that the Commission reconsider its position and dig a little deeper to find that the Agency has engaged in retaliatory conduct by untimely processing his retirement package to OPM. The Agency opposes Complainant’s request. While Complainant argues that the Agency engaged in unlawful retaliation when it purportedly delayed the processing of the paperwork for his retirement, the Commission has generally held that complaints involving OPM and its related processes lodge a collateral attack on the proceedings of that process and do not state a claim within the meaning of our regulations. See Shanti N. v. U.S. Postal Serv., EEOC Appeal No. 2019003167 (July 9, 2019). We find that nothing that Complainant has submitted on reconsideration supports a determination that the prior decision affirming the Agency final decision 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. 2023000054 3 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. 2022004423 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 9, 2023 Date