Abe K.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Jun 8, 2016

0520150473 (E.E.O.C. Jun. 8, 2016)

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

Abe K.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Request No. 0520150473

Appeal No. 0120131588

Agency No. FSISCF200900321

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120131588 (June 30, 2015). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision 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 complaint, Complainant alleged that the Agency subjected him to unlawful
discrimination on the bases of race (Asian), national origin (Indian), color (brown), age (71)
and in reprisal for prior protected EEO activity when:

1. on January 20, 2009, Complainant was not allowed to cancel a meeting;

2. on January 21, 2009, the Agency Civil Rights Director disclosed information
about Complainant's EEO complaints to the responding officials, and
collaborated with them on or about the same date;
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.

0520150473

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3. on January 21, 2009, the Director of the Internal Control and Audit Division
collaborated with the responding officials in sending out a report that “contained
retaliatory negative remarks about the Complainant;”

4. on February 3, 2009, Complainant was informed that his accomplishments
covering the period July 1, 2008, through February 2009, would not be included
in his rating for fiscal year 2009;

5. on February 10, 2009, Complainant's first and second line supervisors
implemented new performance standards for Complainant, for the appraisal
period from February 2009 to September 2009. The standards contained
ambiguities, inconsistencies with the agency's policy statements, and unclear
performance measures;

6. on February 23, 2009, Complainant received a letter of caution;

7. Complainant was not allowed to conduct orientation for a new employee under
his supervision; and

8. On May 8, 2009, Complainant's request for reassignment was denied.

In its final decision, the Agency found no discrimination. On appeal, the Commission found
that the record was inadequate to support the Agency’s final decision. The Commission
remanded for a supplemental investigation. See, EEOC Appeal No. 0120110652 (August 29,
2012). Revisiting the matter in light of the supplemental investigation, the Agency, in a
decision dated February 13, 2013, again found no discrimination. Following a second appeal,
the Commission affirmed the Agency’s final decision on the merits. See, EEOC Appeal No.
0120131588 (June 30, 2015).

In his request for reconsideration of EEOC Appeal No. 0120131588, Complainant reiterates
arguments he raised on appeal. Complainant’s arguments do not 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. Accordingly, we find
that Complainant has failed to demonstrate that the Commission should reconsider its appellate
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 No. 0120131588 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request.

0520150473

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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

June 8, 2016
Date