Jenna P.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jun 8, 2016

0520160227 (E.E.O.C. Jun. 8, 2016)

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

Jenna P.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Request No. 0520160227

Appeal No. 0120152941

Hearing No. 550-2015-00112X

Agency No. DOS-F-087-13

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120152941 (Jan. 28, 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 April 10, 2013, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of race, color, sex, age, national origin, and in reprisal for
prior protected EEO activity when: management placed her on a Performance Improvement
Plan (PIP); she received a letter of reprimand; and she was subjected to a hostile work
environment characterized by, but not limited to, inappropriate comments, false allegations,
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.

0520160227

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intimidating behavior, and excessive monitoring. Complainant was subsequently terminated
for not successfully meeting the objectives of the PIP.2

At the conclusion of the investigation, Complainant requested a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). The AJ dismissed the
complaint without prejudice while Complainant challenged her removal and the related PIP and
hostile work environment issues under the Agency’s negotiated grievance procedure. The
Agency’s collective bargaining agreement provided for the processing and resolution of
allegations of discrimination. Complainant’s grievance was subsequently dismissed. The AJ
reinstated Complainant’s EEO complaint, but later dismissed the complaint because
Complainant’s election to raise her claims in a negotiated grievance procedure constituted an
election of remedies which foreclosed and preempted Complainant’s EEO complaint covering
the same subject matter. The Agency issued a final order fully implementing the AJ’s
decision.

Complainant appealed and, in Jenna P. v. Dep’t of State, EEOC Appeal No. 0120152941 (Jan.
28, 2016), the Commission affirmed the Agency’s final order. In the decision, the
Commission noted that Complainant was an employee covered by a collective bargaining
agreement which permitted claims of discrimination to be raised in a negotiated grievance
procedure. The Commission agreed with the AJ that Complainant did not need to actually
raise a claim of discrimination in the grievance in order to have elected that forum. Further,
Complainant participated in the negotiated grievance process regarding her PIP, which was
inextricably intertwined with her subsequent termination. Even though Complainant filed a
formal complaint of discrimination in April 2013, and then filed her grievance in January
2014, she ultimately chose to fully adjudicate her grievance before proceeding with her EEO
complaint. Therefore, the Commission found that the complaint was properly dismissed
because Complainant elected to pursue her issues through the grievance process.

In her request for reconsideration, Complainant expresses her disagreement with the previous
decision and reiterates numerous 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
2 Complainant additionally raised marital status as a basis of discrimination; however, the
Commission has no jurisdiction over such claims, and declined to address this basis of
discrimination.

0520160227

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Commission to DENY the request. The decision in EEOC Appeal No. 0120152941 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. 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

June 8, 2016
Date