Edmond F.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Sep 21, 2016

0520160447 (E.E.O.C. Sep. 21, 2016)

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

Edmond F.,1
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation,
Agency.

Request No. 0520160447

Appeal No. 0120142939

Hearing No. 570-2011-00216X

Agency No. DOT-2010-23307-PHMSA-02

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120142939 (June 21, 2016). 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).

On May 19, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of age (57) and in reprisal for prior protected EEO activity when:

1. On or about February 18, 2010, Complainant’s duties were temporarily reassigned
to another employee, with the reassignment being a precursor to the permanent
reassignment of these duties soon thereafter;

2. On or about February 22, 2010, Complainant was convinced to go on detail to the
HazMat Office under false pretenses so the Agency could eliminate his job;

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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3. Complainant's supervisor demonstrated a pattern of discrediting his work;

4. On July 13, 2010, Complainant’s supervisor assigned him to the Emergency
Support & Security Group without an SF-50 or job description to reflect the change;
and

5. On July 15, 2010, the Acting Director of Emergency Support & Security requested
that Complainant develop an annual performance plan for which he had little, if
any, knowledge.

At the conclusion of the investigation, Complainant requested a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). The AJ held a multi-day
hearing, and issued a decision finding that Complainant had not been subjected to
discrimination or reprisal. Complainant filed an appeal prior to the expiration of the 40-day
period following his receipt of the AJ’s decision.

In Edmond F., v. Dep’t of Transp., EEOC Appeal No. 0120142939 (June 21, 2016), the
Commission affirmed the Agency’s final action. The Commission determined that the AJ’s
decision was supported by substantial record evidence and that Complainant failed to show that
the Agency’s articulated reasons for its actions were a pretext for discrimination or reprisal.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and reiterates arguments previously raised 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)
(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. 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. 0120142939 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
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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

September 21, 2016
Date