Irvin M.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 5, 2020

2020003467 (E.E.O.C. Oct. 5, 2020)

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

Irvin M.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Request No. 2020003467

Appeal No. 2019005378

Agency No. CHI-19-0333-SSA

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Irvin M. v. Soc. Sec. Admin., EEOC Appeal No.
2019005378 (May 5, 2020). 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).

Complainant, a GS-12 Attorney Adviser at the Agency’s Office of Hearing Operations in Livonia,
Michigan, filed an EEO complaint in which he alleged that the Agency discriminated against him
on the bases of disability (Narcolepsy/Obstructive Sleep Apnea) and in reprisal for prior EEO
activity (reasonable accommodation requests and suspected whistleblower status) when: (1) on
December 20, 2018, management issued Complainant a termination letter effective by January 8,
2019, for performance concerns; and (2) on October 26, 2018 and November 14, 2018, the Agency
denied Complainant's request for reasonable accommodation.

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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The Agency investigated the complaint and thereafter issued a final decision finding no
discrimination or reprisal. In the appellate decision, the Commission affirmed the Agency’s final
decision. Therein, we found that the Agency provided Complainant reasonable accommodation
as he was given Complainant permission to take breaks as necessary throughout the day as
medically necessary and offered him office space closer to the restrooms and elevators in
accordance with his request. As to his termination, we found that the record showed that this
personnel action was based upon Complainant’s unacceptable performance and his interpersonal
difficulties with his fellow employees and was not based on discriminatory animus. Accordingly,
the Commission found that Complainant was not subjected to discrimination as alleged.

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. He has not presented any argument or evidence tending to establish the existence of
either reconsideration criterion. Instead, he merely attempts to reargue his appeal on the merits,
raising contentions similar to those that we considered and rejected in our previous decision.

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. 2019005378 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 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.
2020003467

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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 5, 2020
Date