Colby S.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Jan 7, 2020

Request No. 2019005030 (E.E.O.C. Jan. 7, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colby S.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury, Agency. Request No. 2019005030 Appeal No. 2019001515 Agency No. BFS-18-0767-F DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Colby S. v. Dep’t of the Treasury, EEOC Appeal No. 2019001515 (June 13, 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). Complainant, a Support Services Supervisor, GS-0342-13, at the Agency's Bureau of Fiscal Service in Parkersburg, West Virginia, filed a formal complaint alleging that he was discriminated against on the bases of race (Caucasian), sex (male), disability, and age when: 1. In 2012, Complainant returned to the supervision of a manager from whom he had previously been removed; 2. In 2015, Complainant’s duty station was changed without justification; 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. 2019005030 2 3. In 2015, Complainant was not selected for the West Virginia Facilities Services Branch Manager vacancy (15-FS-522-MPA) even though he was serving in the “Acting” position at the time; 4. From January 5, 2015, through April 14, 2018, Complainant was assigned the duties of two GS-13 positions without receiving additional compensation; 5. A departmental reorganization was planned and carried out in a way that disadvantaged Complainant in that Complainant received fewer opportunities and consideration during the reorganization process; 6. Complainant’s position was abolished even though a division-wide email sent on June 1, 2017, stated that no positions would be impacted; 7. In March 2018, Complainant was not selected for the lateral position of Lead Property Management Specialist (18-FS-64-MPA); and 8. On April 15, 2018, Complainant was placed in a new position without sufficient training and was forced to relocate to a new duty location. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Agency noted that Complainant filed an administrative grievance and contacted the EEO counselor on the same day he received the decision denying his grievance. On appeal, the Commission affirmed the dismissal finding that the most recent discriminatory event Complainant raised occurred on April 15, 2018, but Complainant did not contact an EEO counselor until August 1, 2018, well beyond the 45-day filing period prescribed by EEOC regulations. The Commission rejected Complainant’s assertion that he was discriminated against within the 45-day period as those events related to Complainant’s administrative grievances. In his request for reconsideration, Complainant expresses his disagreement with the appellate decision and reiterates many arguments previously made on appeal. For example, Complainant insists that he filed a complaint alleging a “pattern of behaviors over time” and that these discriminatory events occurred up to the date he filed his formal complaint, November 1, 2018. The Commission emphasizes that a request for reconsideration is not a second appeal. 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. Complainant has not presented any persuasive evidence to support reconsideration of the Commission’s decision. 2019005030 3 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. 2019001515 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. 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 7, 2020 Date