Bennie S.,1 Complainant,v.Dr. Ernest Moniz, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Mar 29, 2016

0520160070 (E.E.O.C. Mar. 29, 2016)

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

Bennie S.,1
Complainant,

v.

Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.

Request No. 0520160070

Appeal No. 0120152215

Agency No. 15-0055-WAPA

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0120152215
(October 16, 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
discrimination in reprisal for prior protected EEO activity when the Operations Manager filled
a Supervisory IT Specialist position through a lateral reassignment, precluding him from
applying for the position. The Agency dismissed Complainant’s complaint for untimely EEO
Counselor contact stating that Complainant learned of the decision to make the lateral
reassignment on November 25, 2014, but did not seek EEO counseling until February 12,
2015, beyond the 45-day limitation period provided for in the regulations.

In our previous decision, the Commission noted the record supported the Agency’s assertion
that Complainant learned on November 25, 2014, that the Operations Manager was planning to
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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fill the supervisory position through a lateral reassignment rather than a competitive selection
process. However, the decision stated that as the complaint involved a personnel action, the
45-day limitation period for EEO counseling contact ran from the effective date of the lateral
reassignment. The Commission noted Complainant asserted the actual personnel action was
effectuated in February 2015, having been announced approximately three months earlier. The
Commission found the record supported a finding that the initial EEO contact was timely
made.

In its request for reconsideration, the Agency argues that because Complainant’s retaliation
claim was actionable when he learned of the manager’s decision not to compete the position,
that is the event which determines the applicable limitations period. The Agency cites to the
Delaware State College v. Ricks, 449 U.S. 250, 261 (1980) and the Commission’s decision in
Purcell v. Dep’t of the Army, EEOC No. 05931188 (Mar. 17, 1994).

In Ricks, the plaintiff had been informed in June 1974 that he would not be granted tenure in
his position and pursuant to an established tenure policy, was given a one-year terminal
contract which ended in 1975. The plaintiff initiated his EEO complaint after being terminated
in 1975. The Court noted the plaintiff only alleged discrimination with regard to the earlier
made tenure decision and held the limitations period commenced at the time the tenure decision
was made and communicated to the plaintiff. The Court notes this was so even though one of
the effects of the denial of tenure – the eventual loss of a teaching position – did not occur until
later. In the present case, Complainant’s complaint alleged he was subjected to discrimination
in reprisal for prior protected EEO activity when the Operations Manager filled a Supervisory
IT specialist position through a lateral reassignment. As Complainant’s complaint concerns the
personnel action of the lateral reassignment, the 45-day limitation period commenced from the
effective date of the lateral reassignment. Thus we find Ricks distinguishable from the instant
case.

With regard to Purcell, we find the facts are distinguishable from the present case. In Purcell,
the Commission found the complainant’s counselor contact untimely where it was made several
months after a request to extend a tour assignment was denied, but within 45 days of the actual
reassignment. Specifically, we note that in Purcell, the complainant complained about the
decision of a particular agency official to deny his tour extension. The decision was initially
rendered in November of 1991, and the Complainant admitted he was clearly aware of the
decision long before he decided to contact a counselor in late June of 1992. In Purcell the
complainant’s complaint also made it clear that he believed that the essence of the alleged
discriminatory action against him occurred when his tour extension was denied, in that he
asserted that the subject agency official told him in November 1991 that the reason for this
denial was that he had “Been here too long” and that he believed that such a statement showed
an animus towards older employees. Unlike the situation in Purcell, the present case does not
contain an admission by Complainant that he suspected retaliation on November 25, 2014,
when the Operations Manager decided she was planning to fill the supervisory position through
a lateral reassignment rather than a competitive selection process.

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Upon review, we find the Commission’s decision in EEOC No. 0120152215 properly
determined that in the present case the 45-day limitation period for EEO counseling contact ran
from the effective date of the lateral reassignment. We note that for the first time in its request
for reconsideration, the Agency argues that the Selectee was reassigned more than 45 days
before Complainant initiated EEO Counselor contact. The Agency produces a SF-50 showing
that the Selectee’s actual reassignment occurred on December 14, 2014. We note such
documentation was not included in the prior appeal file. Thus, we find the prior decision
properly determined Complainant timely initiated EEO Counselor contact.

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. 0120152215 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 herein.

ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. §
1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claims within thirty (30) calendar days of the date this decision becomes final. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved prior to that time. If the
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 (K0610)
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 submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. 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

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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. 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

March 29, 2016
Date