Damon Q.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Office of Inspector General), Agency.

Equal Employment Opportunity Commission

Feb 4, 2016

0520160013 (E.E.O.C. Feb. 4, 2016)

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

Damon Q.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Office of Inspector General),
Agency.

Request No. 0520160013

Appeal No. 0120133278

Agency No. OIG-2004-01693

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested reconsideration of the decision in EEOC Appeal No. 0120133278
(August 25, 2015). EEOC Regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision 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). For the following
reasons, the Commission DENIES Complainant’s request for reconsideration.

As a preliminary matter, we note that our decision in EEOC Appeal No. 0120133278
remanded two claims to the Agency for further processing. We find that neither party requests
reconsideration of that portion of the Commission’s Decision and we shall again order the
Agency to comply with our previous order.

Previously, the Commission affirmed the Agency’s determination that Complainant failed to
present preponderant evidence that his race or prior EEO activity motivated Complainant’s
supervisors to harass him with what he claimed were derogatory or critical comments and

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.
0520160013

2
assessments of his performance and work products. The Commission concurred with the
Agency that Complainant failed to show the reasons set forth for the actions Complainant
found unwelcome and discriminatory, were a pretext to mask race or reprisal discrimination.
In his request, Complainant states that the Commission improperly credited the statements of
an identified Agency official. Complainant also states that the Commission improperly
disregarded the discrimination findings against the identified official in complaints filed by two
of Complainant’s coworkers.

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 Commission finds that the prior decision properly found
that Complainant failed to show by a preponderance of evidence that he was discriminatorily
harassed. Furthermore, the discrimination findings in a separate case concerning different
complainants was not a finding regarding the same claim as the instant claim and does not
indicate there was discriminatory harassment in the instant matter. The decision in EEOC
Appeal No. 0120133278 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 action:
Within sixty calendar days of the date this decision becomes final, the Agency shall conduct a
supplemental investigation into the issues raised in claims (11) and (12) (September 2005
performance appraisal and denial of performance bonus) and shall issue a new Final Decision
on these claims pursuant to 29 C.F.R. § 1614.110(b). A copy of the Agency's new Final
decision must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

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 submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. 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)
0520160013

3
(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 (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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. 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, Director
Office of Federal Operations

February 4, 2016
Date