Chadwick S.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jan 11, 2018

0520170207 (E.E.O.C. Jan. 11, 2018)

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

Chadwick S.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Request No. 0520170207

Appeal No. 0120162780

Agency No. 2016-26804-FAA-06

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Chadwick S. v. Dep’t of Transp., EEOC Appeal No.
0120162780 (Jan. 24, 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).

On July 8, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to
discrimination on the basis of disability (mental impairments associated with intellectual
giftedness such as hypersensitivity to acoustic stimuli) when since October 2014:

1. Complainant was subjected to loud sounds and screaming in the work place by peers
and management as a means to harass him by causing his cognitive brainwaves to be
disrupted from their natural rhythms;

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.
0520170207

2
2. Fellow employees engaged in the tactic of deliberately setting off the fire alarm to
distract Complainant from performing his duties;

3. The lighting system was upgraded to very bright LED lighting which exacerbated
Complainant’s condition;

4. In December 2015, the FAA ordered the targeted vectoring of G Class Aircraft over
Complainant’s home; and

5. Due to the harassing working conditions, Complainant was forced to resign, effective
February 6, 2016.

On August 3, 2016, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for untimely EEO counselor contact. The Agency determined that Complainant’s initial contact
with an EEO counselor occurred on March 25, 2016, while the most recent alleged
discriminatory incident (the effective date of his resignation) occurred on February 6, 2016,
which was beyond the 45-day limitation period. As a result, the Agency dismissed the complaint
for untimely EEO counselor contact.

Complainant appealed and, in Chadwick S. v. Dep’t of Transp., EEOC Appeal No. 0120162780
(Jan. 24, 2017), the Commission reversed the Agency’s dismissal finding that Complainant’s
EEO counselor contact was timely. The Commission reasoned that 29 C.F.R. § 1614.105(a)(1)
stated that the 45-day limitation period ran from the effective date of the personnel action. The
Commission added that it was undisputed that the effective date of Complainant’s resignation
was February 6, 2016. Further, the Commission found that the record showed that
Complainant’s EEO Counselor contact actually occurred on March 18, 2016. Consequently, the
Commission found that Complainant’s March 18, 2016 EEO counselor contact was timely, and
remanded the matter for further processing.

In its request for reconsideration, the Agency expresses its disagreement with the previous
decision and reiterates arguments previously raised during the 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) (Aug.
5, 2015), at 9-18; 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. The Agency has not
presented any evidence to support reconsideration of the Commission’s finding that
Complainant’s EEO counselor contact was timely. As such, the Agency has not put forth any
persuasive arguments to support granting the request for reconsideration.

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. 0120162780 remains the
0520170207

3
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 below.

ORDER (E1016)
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 was issued. 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 was issued, 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 (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 (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.
0520170207

4
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

January 11, 2018
Date