Virgilio C.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

0520180586 (E.E.O.C. Dec. 14, 2018)

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

Virgilio C.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Request No. 0520180586

Appeal No. 0120172762

Hearing No. 540-2015-00201X

Agency No. FS201300867

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Virgilio C. v. Dep’t of Agric., EEOC Appeal No.
0120172762 (June 28, 2018). 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).

Complainant, an Administratively Determined Type II Firefighter, filed an EEO complaint
alleging that the Agency subjected him to discrimination and a hostile work environment on the
bases of race (multi-racial, Caucasian, African-American, and Alaskan Native) and age (mid 50s)
when:

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.
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1. On August 9, 2013, he learned that he had been demoted or downgraded from a Type
II Initial Attack Firefighter to a Type II Firefighter;

2. On or about August 9, 2013, he was denied a light duty assignment; and

3. In or about June 2013, he was subjected to an additional act of harassment when a
supervisory official used a racial slur in Complainant's presence.

Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). The AJ assigned to the matter granted the Agency’s motion and issued a summary
judgment decision finding that Complainant had not been subjected to discrimination or a hostile
work environment as alleged. The Agency subsequently issued a final order fully implementing
the AJ’s decision. Complainant appealed and, in Virgilio C. v. Dep’t of Agric., EEOC Appeal No.
0120172762 (June 28, 2018), the Commission affirmed the final order.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and contends that he was subjected to discrimination. The Commission emphasizes that
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), at 9-18 (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. Complainant has not presented any evidence establishing that the Commission erred
in finding that the AJ properly granted summary judgment in this matter. Moreover, the
Commission finds that Complainant has not presented any evidence to support reconsideration of
the Commission’s finding that he failed to show that he was subjected to discrimination or a hostile
work environment.

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. 0120172762 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
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“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

December 14, 2018
Date