Celine D.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Jun 6, 2018

0520180187 (E.E.O.C. Jun. 6, 2018)

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

Celine D.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Request No. 0520180187

Appeal No. 0120152406

Agency No. F-07-6345

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120152406 (December 14, 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).

In her underlying complaint, Complainant alleged that the Agency subjected her to unlawful
discrimination based on her national origin/race (Native American), sex (female), and in reprisal
for protected EEO activity when she was terminated on April 16, 2007. In a final decision, dated
October 22, 2009, the Agency found that the disciplinary process by which the Agency determined
to remove Complainant was tainted by the retaliatory animus of a supervisor about whom
Complainant had filed an earlier EEO complaint. The decision directed that the removal decision
be vacated and that the disciplinary process be repeated by decisionmakers not tainted by

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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retaliatory animus. Complainant did not appeal this decision to the Commission. The Agency
reconvened the disciplinary fact-finding process, which was presided over by a different deciding
official and excluded evidence potentially influenced by retaliatory animus. A decision to remove
Complainant was issued on July 2, 2010, and affirmed through the Agency’s internal procedures
on May 8, 2014. Complainant did not further appeal the removal decision.

In a separate decision on damages, dated April 21, 2015, the Agency awarded Complainant
$25,000 in compensatory damages, as a result of being subjected to retaliation in the course of the
earlier disciplinary proceedings. She was also awarded $29,325.51 in attorney’s fees and costs.
Complainant appealed the damages award to the Commission. Our previous decision in EEOC
Appeal No. 0120152406 affirmed the final agency decision, denying Complainant’s requests for
an award of back pay and for larger awards of compensatory damages and attorney’s fees.

In her request for reconsideration, Complainant reiterates the arguments she raised on appeal,
including addressing the underlying merits of her removal, an issue not before us on appeal. We
emphasize 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), at 9-18
(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. 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 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. 0120152406 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

ORDER

The Agency is ordered to take the following remedial actions, as slightly modified herein:

To the extent it has not already done so, within 60 calendar days of the date of this decision,
the Agency shall pay Complainant $29,325.51 in attorney’s fees and costs, and pay
Complainant $25,000 in nonpecuniary compensatory damages.

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.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The report
shall include supporting documentation verifying that the corrective action has been implemented.
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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.

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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 6, 2018
Date