Emery F.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Dec 8, 2017

0520170498 (E.E.O.C. Dec. 8, 2017)

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

Emery F.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation,
Agency.

Request Nos. 0520170498
0520170499

Appeal Nos. 0120152076
0120152172

Agency Nos. 2011-24040-RITA-02
2011-23703-RITA-02

DECISION ON REQUESTS FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal Nos. 0120152076 and 0120152172 (June
22, 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 the underlying complaints, Complainant alleged that he was discriminated against based on
reprisal (his prior EEO activity), when on or about December 6, 2010, he received an unfair
performance appraisal. Complainant also alleged unlawful harassment on the bases of his race
(Caucasian); age (55 years old); and sex (male) when: (a) in March 2011, his supervisor told him
during his midterm performance review that “for the sake of his professional career, you need to

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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understand that, if you push management, management will push back;” (b) on March 28, 2011,
his supervisor falsely introduced a coworker of his as the head of the BTS Safety Program; (c) in
April 2011, his supervisor responded in an email asking him to refrain from rude and
disrespectful communications and stated that unacceptable behavior can be grounds for
disciplinary action; (d) in May 2011, he was prevented from taking an elective training course
because it had filled up while his supervisor was waiting to hear from upper management on
whom he should contact; (e) on June 21, 2011, after he had provided his supervisor with his
performance appraisal input, he asked him to provide more details on any presentations or
written materials that he did for his various committees; (f) on July 14, 2011, and in a revision
dated July 27, 2011, he was given: an unsatisfactory performance rating in the critical
Interpersonal Relationships/Teamwork category; mediocre (a rating of 3 on a 1-5 scale) ratings
in five other categories; an overall rating of 1; in addition, management made false statements in
the narrative portions of his appraisal, e.g., that he had engaged in a “shouting match” with
another employee; and (g) on August 10, 2011, he was informed that an Official Reprimand,
dated July 20, 2011, had been placed in his file for “continued unprofessional behavior in the
workplace.”

Complainant requested a hearing before a Commission Administrative Judge (AJ). The AJ
issued summary judgment in favor of the Agency. Our previous decision affirmed the AJ’s
conclusions that Complainant failed to present evidence of discriminatory animus with respect to
Complainant’s harassment claim and failed to present sufficient evidence to show that the
Agency’s legitimate non-retaliatory explanation for the performance review was a pretext or
otherwise motivated by retaliatory animus.

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), 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.
Complainant has not done so here. Aside from his assertions that the previous decisions were
incorrect, Complainant has not shown with specificity how he meets the criteria for a 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 Nos. 0120152076 and
0120152172 remains the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.

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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

December 08, 2017
Date