0520180194
04-19-2018
Alline B,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alline B,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Request No. 0520180194
Appeal No. 0120162182
Agency No. OCO150830SSA
DECISION ON REQUEST FOR RECONSIDERATION
Both complainant and the Agency requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120162182 (December 8, 2017). 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).
As an initial matter, we find that the Agency's request for reconsideration, dated March 13, 2018, was filed in an untimely manner. Thus, its request is denied and we will not address it herein.
Complainant worked as a GS-8 Customer Service Technician st the Agency's Data Operations Center in Wilkes-Barre, Pennsylvania. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age when on June 10, 2015, the Agency did not select her for the position of Supervisory Customer Service Technician advertised under Vacancy Announcement Number SW-1341541-15-WB-1324. The position was a temporary position, not to exceed one year.
Our previous decision reversed the Agency's final decision, finding that Complainant was discriminated against. The decision found that the Agency failed to articulate a specific, clear, and individualized explanation for Complainant's non-selection.
In her request for reconsideration, Complainant states that although the vacancy announcement was very specific that the promotion was not to exceed one year, she feels that that the Order in the previous decision should be changed so that the position is not limited to one year, so she will be afforded the opportunity to be promoted. However, Complainant is only entitled to the position for which she applied. Thus, the order remains the same.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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. Neither the Agency nor Complainant has not done so here.
After reviewing the previous decision and the entire record, the Commission finds that the requests fail to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the requests. The decision in EEOC Appeal No. 0120162182 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency is directed to comply with the Order as set forth below.
ORDER
The Agency is ordered to take the following remedial action within ninety (90) days of the date this decision is issued:
1. The Agency shall offer Complainant the position of GS-9 Supervisory Customer Service Technician, or a substantially equivalent position, in Wilkes-Barre, Pennsylvania, not to exceed one year. Complainant shall have fifteen (15) days from the date of the offer to accept or decline the position.
2. The Agency shall provide eight (8) hours of in-person EEO training to all selecting and responsible management officials in this case, including the Director, Deputy Director, Customer Service Branch Manager, the Deputy Branch Manager, and the Assistant Associate Commissioner. The training shall focus on management's responsibilities to prevent age discrimination and reprisal under EEO laws.
3. The Agency shall consider taking appropriate disciplinary action against the Director, Deputy Director, Customer Service Branch Manager, the Deputy Branch Manager, and the Assistant Associate Commissioner. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth its reason(s) for its decision not to impose discipline. If any of the above individuals have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
4. The Agency shall post a notice in accordance with the Order set forth below entitled "Posting Order."
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." Further, the report must include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Wilkes-Barre facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
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 (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
April 19, 2018
__________________
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.
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