0520160127
04-15-2016
Floyd C.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (U.S. Marshals Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Floyd C.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Request No. 0520160127
Appeal No. 0120121877
Agency No. USM20100002
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120121877 (November 3, 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).
Complainant was an applicant for employment with the Agency. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when, on July 15, 2010, he received a letter for the United States Marshals Service informing him that he had been removed from the application process and would no longer be considered for the position of Deputy United States Marshal.
The Agency investigated the complaint and Complainant requested a hearing. Complainant subsequently withdrew his request for the hearing. Consequently, the Agency issued a final decision finding that Complainant was not discriminated against as alleged. Complainant appealed the decision, and our previous decision vacated the Agency's decision and remanded the matter for a supplemental investigation. The previous decision noted that:
After a review of the record, we are unable to determine from the record whether an adequate individualized assessment was accomplished. The Agency failed to secure testimony from its Contract Psychiatrist, who was the individual solely responsible for the Agency's finding that Complainant was not qualified for the position. This finding was then adopted by other Agency officials, and for that reason, we find his testimony necessary in this matter.
The previous decision noted the "lack of certainty" in the record. The decision ordered a supplemental investigation, and reminded the Agency that the Commission encourages settlement of EEO complaints at any stage of processing. See 29 C.F.R. � 1614.603.
In his request for reconsideration, Complainant asserts that the matter should not have been remanded. Instead, he argues that a finding of discrimination should have been made. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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. 0120121877 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
Within sixty (60) days from the date this decision becomes final, the Agency shall:
(1) The Agency shall secure an affidavit from its Contract Psychiatrist describing Complainant's history of "subtle incapacitation," as well as any triggers that could result in such incapacitation. The Contract Psychiatrist shall discuss: a) the duration of the risk; b) the nature and severity of the potential harm; c) the likelihood that the potential harm will occur; and d) the imminence of the potential harm. 29 C.F.R. � 1630.2(r). The psychiatrist shall also incorporate the essential job functions for which he concludes the effects of Complainant's disability would result in an incapacitation.
(2) The Agency shall provide Complainant with the opportunity to respond and/or provide further evidence during the supplemental investigation. The Agency shall complete the investigation and issue a final decision addressing the complaint with appeal rights to the Commission within 150 calendar days after this decision becomes final.
Upon completion of the investigation, the Agency must provide the Complainant with a copy of the supplemental record and findings and return the completed record to the Compliance Officer, as referenced below. The Complainant may, within fifteen (15) days of receipt of the supplemental record, submit a statement concerning the supplemental record to the Compliance Officer. Upon receipt by the Compliance Officer, the supplemental record will be included in the appeal file and the appeal will be processed appropriately.
In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint.
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) (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 (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
April 15, 2016
__________________
Date
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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