Keith L.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Aug 7, 2018

0520180253 (E.E.O.C. Aug. 7, 2018)

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

Keith L.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Request No. 0520180253

Appeal No. 0120180471

Agency No. GSA-17-R2-L-0185

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180471 (February 8, 2018). 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 complaint, Complainant claims that the Agency discriminated against him based
on reprisal (prior EEO activity) when, on September 6, 2017, he received an email message from
the Agency’s Acting Assistant Regional Counsel which he perceived as threatening.

In our previous decision, we noted that the record indicates that in an email to the Assistant
Regional Counsel, Complainant referred to specific Agency managers as “ [the] three amigos.”

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.
0520180253

2
In response to Complainant’s email, the Agency official advised Complainant that his use of the
term “three amigos” could be construed as harassing with respect to “ethnicity/national origin.”

Our previous decision affirmed the Agency’s dismissal of the complaint on the basis that
Complainant failed to state a claim. 29 C.F.R. § 1614.107(a)(1). Specifically, we previously noted
that Complainant has not alleged a personal loss or harm regarding a term, condition or privilege
his employment. Complainant has not claimed that he was disciplined or subjected to any adverse
personnel action because of the alleged Agency conduct. We previously concluded that, to the
extent that Complainant is claiming discriminatory harassment, the incident described, even if
proven to be true and viewed in a light most favorable to Complainant, would not indicate that
Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter
the conditions of his employment. See Cobb v. Department of the Treasury, EEOC Request No.
05970077 (March 13, 1997). Finally, we previously concluded that the Agency’s purported action
was not reasonably likely to deter Complainant or others from engaging in protected EEO activity.

In his reconsideration request, Complainant does not address the bases for dismissal. He argues
that he should be allowed to use the phrase in question when describing the actions of Agency
managers without being “threatened” by Agency attorneys. 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.

Accordingly, 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. 0120180471 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.

0520180253

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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

August 7, 2018
Date