U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Abe K.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(U.S. Marshals Service &
Executive Office of the U.S. Attorneys).
Agency.
Request Nos. 0520180431
0520180432
Appeal Nos. 0120180724
0120181492
Agency Nos. USM-2017-01061
USA-2018-00146
DECISION ON REQUESTS FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal Nos. 0120180724 and 0120181492 (May
14, 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).
In his underlying complaints, Complainant claimed that two Agency subcomponents, the U.S.
Marshall’s Service (USMS) and the Executive Office of the U.S. Attorneys (EOUSA)
discriminated against him on the basis of his disability (color vision deficiency) when it was
determined he was not medically qualified for his position as a Special Security Officer because
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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he did not meet the Agency’s vision standard, and was subsequently terminated from his position
on March 23, 2015.
In the final decision in Complaint 1, the USMS dismissed the complaint because it determined
Complainant did not file his complaint with the agency that allegedly discriminated against him.
In the final decision in Complaint 2, the EOUSA dismissed the complaint because it determined
the complaint stated the same claim as Complaint 1, which at the time was pending appeal before
the Commission.
On appeal, the Commission consolidated both matters, reversed the Agency’s final decisions, and
remanded the complaints to the Agency for further processing as a consolidated complaint. Our
previous decision observed that in its dismissal, USMS had suggested to Complainant that the
proper agency to file his complaint with was EOUSA, but that after he did so, EOUSA dismissed
Complaint 2 because he previously filed Complaint 1 with the same claim. We stated that this
placed Complainant in a catch-22 position. We found that both complaints were filed against the
Department of Justice in light of the fact that both the USMS and the EOUSA are two of its
subcomponents.
In its request for reconsideration, the Agency does not argue that the Commission’s previous
decision contained a clearly erroneous interpretation of fact; rather, the Agency claims that
reconsideration should be granted on the narrow grounds that the decision would have a substantial
impact on the operations of the Agency because it would not allow the Agency to first determine
whether there were alternative grounds for dismissal. In response, Complainant asserts that the
Agency could have cited an alternative ground for dismissal in its dismissal of either Complaint 1
or Complaint 2, but chose not to do so. Complainant argues that any assertion of alternative
dismissal grounds should be considered waived.
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), 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.
The Agency has not presented any persuasive evidence to support reconsideration of the
Commission’s decision.
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 Nos. 0120180724 and 0120181492, remains
the Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
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The Agency is ordered to process the remanded consolidated complaint in accordance with this
decision and 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to Complainant that it
has received the remanded consolidated complaints within thirty (30) calendar days of the date
this decision was issued. The Agency shall issue to Complainant a copy of the investigative file
and shall also notify Complainant of the appropriate rights within one hundred fifty (150) calendar
days of the date this decision was issued, unless the matter is otherwise resolved prior to that time.
If Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must
contain supporting documentation, and the Agency must send a copy of all submissions to the
Complainant. If the Agency does not comply with the Commission’s order, the Complainant may
petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant
also has the right to file a civil action to enforce compliance with the Commission’s order prior to
or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407. 1614.408,
and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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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. Filing
a civil action will terminate the administrative processing of your complaint.
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
November 8, 2018
Date
