Breanna S.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Dec 26, 2019

2019005921 (E.E.O.C. Dec. 26, 2019)

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

Breanna S.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Request No. 2019005921

Appeal No. 0120182339

Agency No. BOP201501811

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Breanna S. v. Dept. of Justice, EEOC Appeal No.
0120182339 (July 17, 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).

During the period at issue, Complainant worked as a Contract Specialist at the Agency’s Federal
Correctional Complex (FCC Bunter) in Butner, North Carolina. On April 2, 2015, Complainant
filed a formal EEO complaint claiming that the Agency discriminated against her based on race
(African-American), sex (female), age (45), and in reprisal for prior protected EEO activity
when:

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.
2019005921

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1. she was not selected to be a Financial Program Specialist;2 and

2. Complainant’s managers assigned her an annual performance rating of
“Excellent” or “Exceeds.”

On May 25, 2018, the Agency issued a final decision finding no discrimination.

In EEOC Appeal No. 0120182339, we determined that the responsible Agency management
officials articulated legitimate, non-discriminatory reasons for the disputed actions. Specifically,
the decision found that Complainant was not selected for the Financial Program Specialist
position because she had less accounting experience than the selectee; she had an associate’s
degree; and she received lower ratings during the reference check process than the selectee. With
respect to Complainant’s performance rating, the decision determined Complainant’s end of the
year rating was based on her quarterly log entries. The decision further determined that it was
reasonable for Complainant to have received an “Excellent” or “Exceeds” rating instead of an
“Outstanding” rating because Complainant was rated “Satisfactory” for one of her performance
elements which would have rendered her overall performance lower than an Outstanding rating.

In the instant request for reconsideration, Complainant submits statements expressing her
disagreement with the appellate decision and reiterates arguments previously made on appeal.
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. Complainant has not done so here.

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. 0120182339 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

Because we find that the criteria of 29 C.F.R. § 1614.405(c) has not been met, we need not
address the Agency’s alternative argument, stated on appeal, for dismissal of Complainant’s
request for reconsideration.

2 The Commission determined, in a prior decision, that Complainant’s allegation that she was not
selected for the position at issue in reprisal for prior protected EEO activity was a matter raised
within a pending class action (Turner, et al. v. Dept. of Justice, EEOC No. 541-2008-00255X)
and would be held in abeyance. See Melissa F. v. Dept. of Justice, EEOC Appeal No.
0120160074 (Jan. 21, 2016).
2019005921

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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

December 26, 2019
Date