Felton Z.,1 Complainant,v.Kathy Kraninger, Director, Consumer Financial Protection Bureau, Agency.

Equal Employment Opportunity Commission

Oct 9, 2019

2019004231 (E.E.O.C. Oct. 9, 2019)

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

Felton Z.,1
Complainant,

v.

Kathy Kraninger,
Director,
Consumer Financial Protection Bureau,
Agency.

Request No. 2019004231

Appeal No. 2019001255

Agency No. CFPB-0040-2018

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Felton Z. v. Consumer Fin. Prot. Bureau, EEOC Appeal
No. 2019001255 (Apr. 9, 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).

In his underlying complaint, Complainant claimed that he was subjected to sexual harassment on
the basis of his sex (male) when in February 2018, a male colleague from Smartronix grabbed his
buttocks. The Agency had entered into a blanket purchase agreement with Smartronix to provide
network engineer support. Smartronix executed a sub-contract with staffing firm BigR.io which
hired Complainant to fill an AWS Cloud Engineer position. Complainant was assigned to a team
comprised of Agency employees and other contractors that worked at the Agency’s Office of
Technology and Innovation in Washington, D.C.

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.
2019004231

2
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim. The Agency determined that it lacked sufficient control over the terms and conditions of
Complainant’s employment to be considered a joint employer.

On appeal, the Commission affirmed the Agency’s final decision concluding that the Agency was
not a joint employer of Complainant. We observed that Complainant’s assignments appeared to
be supervised and evaluated by Smartronix and that, according to Smartronix officials, the Agency
did not have input concerning termination of individuals. We noted that Complainant was
recruited and paid by BigR.io. Furthermore, the allegation of sexual harassment itself, did not
reflect control by the Agency. Complainant alleged that while he was (a) off-site, (b) during his
lunch hour, (c) a Smartronix employee inappropriately touched him. He reported the incident to
his Smartronix supervisor (Program Manager), who counseled Employee A, a Smartronix
employee. In addition, it was unclear if or when the Agency was even informed about the incident.
Therefore, based on the record, it was unreasonable to conclude that the Agency exerted sufficient
control over Complainant to be considered a joint-employer for the purpose of the EEO process.

In his request for reconsideration, Complainant contends that he never had an employment
contractual relationship with Smartronix. Complainant maintains that the Project Manager was
his Agency-appointed supervisor but acknowledges that the Project Manager was a Smartronix
employee. Complainant states that due to being sexually assaulted he has not worked since leaving
that hostile work environment and he has suffered mental and emotional distress, and damaged
self-esteem. In response, the Agency asserts that Complainant’s contention in his request to
reconsider supports the basis for our prior decision and the final agency decision in that the Agency
did not have a joint employer relationship with Complainant.

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), 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. We find that Complainant has not presented any evidence to establish that the
Agency had a joint employer relationship with him. We discern no persuasive argument or
evidence in Complainant’s request for reconsideration that satisfy the criteria for granting a request
to reconsider.

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. 2019001255 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

2019004231

3
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

October 9, 2019
Date