Billi L.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

2019004819 (E.E.O.C. Dec. 18, 2019)

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

Billi L.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Request Nos. 2019004819 & 2019004820
Appeal Nos. 0120180803 & 0120181654
Hearing Nos. 440201400077X & 440-201800020X
Agency Nos. CRC 12-05-085 & 113-05-111

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Billi L. v. Dep’t of Labor, EEOC Appeal Nos. 0120180803
& 0120181654 (June 5, 2019). 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 two, later consolidated, complaints, Complainant alleged that the Agency subjected her to
unlawful discrimination on the bases of disability and in reprisal for prior protected EEO activity
based on the following incidents:

Complaint 1 (CRC 12-05-085)

(1) On March 29, 2012, an attorney with the Office of the Solicitor (SOL) told
Complainant (via email) not to contact the Office of Federal Contract Compliance
Programs (OFCCP) Director; (2) on April 24, 2012, Complainant was subjected to two
hours of questioning by the District Director regarding emails she had sent to the

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.
2019004819 & 2019004820

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OFCCP Director; (3) on June 26, 2012, four management officials questioned
Complainant for over two hours; (4) on June 29, 2012, Complainant was placed on
Administrative Leave; (5) during the week of October 22, 2012, Complainant was
rated as “Partially Meets: on her FY 2012 performance evaluation; and (6) on February
21, 2013, Complainant was constructively discharged from the Agency.

Complaint 2 (CRC 13-05-111)

(1) After the Complainant's first reasonable accommodation request was granted on
November 20, 2012, this accommodation was not implemented by management; (2) after
the Complainant requested a second reasonable accommodation (a transfer) from
management on November 15, 2012, management took no further action regarding her
request through her departure from the Agency on February 22, 2013.

The Agency processed Complaint 1 as a mixed case. It issued a final decision (FAD) finding no
discrimination and informing Complainant of her right to appeal to the Merit Systems Protection
Board (MSPB). Complainant’s appeal to MSPB was dismissed for lack of jurisdiction.
Complainant then requested a hearing before an EEOC Administrative Judge (AJ).

Meanwhile, Complainant had filed Complaint 2. Following the investigation of that complaint,
the Agency issued a FAD finding no discrimination. Complainant appealed to the Commission
arguing, in part, that the Agency should not have issued a FAD but should rather have consolidated
Complaint 2 with Complaint 1 and allowed both complaints to proceed before the EEOC AJ. In
Gearldine B. v. Dep’t of Labor, EEOC Appeal No. 0120142157 (Feb. 1, 2017), the Commission
vacated the FAD and ordered that Complaint 1 be consolidated with Complaint 2 that was pending
a hearing before an AJ.

On remand, apparently through a failure of communication between the Agency and the EEOC
Hearings Unit of the Chicago District Office, the AJ to whom Complaint 1 was assigned was not
immediately informed of the Commission’s order. Before the AJ learned of the order, on October
17, 2017, she issued a summary judgment decision on Complaint 1 in favor of the Agency finding
no discrimination. Complainant promptly moved for the AJ to vacate that decision on the ground
that it was inconsistent with the Commission’s remand order. The AJ denied the motion, observing
that Complaint 2 had now been assigned to her and that complaint had not been prejudiced by the
failure to consolidate. The Agency’s final order fully implemented the AJ’s decision and
Complainant appealed.

With respect to Complaint 2, on February 27, 2018, the AJ granted the Agency’s motion to dismiss
on grounds of mootness. The Agency’s final order fully implemented the AJ’s decision.
Complainant appealed.

On appeal, the Commission consolidated the two appeals. The Commission affirmed the final
order implementing the AJ’s summary judgment decision in Complaint 1 and the final order
implementing the dismissal of Complaint 2.
2019004819 & 2019004820

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The Commission concluded that Complainant had failed to demonstrate that the Agency’s actions
were based on discriminatory or retaliatory animus. Further, the Commission determined that
Complainant failed to show that the Agency denied her reasonable accommodation in violation of
the Rehabilitation Act. As a result, the Commission found that Complainant had not been
subjected to discrimination, reprisal, constructive discharge, or a hostile work environment as
alleged.

In her request for reconsideration, Complainant’s principal argument is that, pursuant to the terms
of the Commission’s remand order, an AJ hearing on her complaints was mandatory.
Complainant’s position is not well taken. Our remand order specifies that an administrative judge
“shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. §
1614.109 . . .” The referenced § 1614.109, entitled “Hearings,” explicitly contemplates that
administrative judges, in the course of the hearing process, may issue “Dismissals” (subsection
(b)) and “Summary Judgment” (subsection (g)). Because of these provisions, the AJ’s decisions
below did not violate our order. We find that 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. 0120180803 & 0120181654 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
“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.
2019004819 & 2019004820

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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 18, 2019
Date