Macy B.,1 Complainant,v.Ajit V. Pai, Chairman, Federal Communications Commission, Agency.

Equal Employment Opportunity Commission

Nov 13, 2018

0520180433 (E.E.O.C. Nov. 13, 2018)

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

Macy B.,1
Complainant,

v.

Ajit V. Pai,
Chairman,
Federal Communications Commission,
Agency.

Request No. 0520180433

Appeal No. 0120180828

Agency Nos. FCC-EEO-17-15; FCC-EEO-17-18; FCC-EEO-18-02; FCC-EEO-18-05

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180828 (May 9, 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).

Complainant, a GS-15 Electronics Engineer, filed the four EEO complaints referenced above. On
November 21, 2017, the Agency issued a final decision in which it dismissed the complaints for
untimely contact with an EEO counselor, for raising claims identical to those raised in prior
complaints, and for failure to state a claim by not establishing that she was an aggrieved employee.

In our previous decision, we reversed the Agency’s dismissal of Complainant’s four complaints
and remanded the matters for processing. At the outset, we affirmed the Agency’s dismissal of
Complainant’s claim concerning her dissatisfaction with the Agency’s processing of a prior
complaint.

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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2
Regarding the four complaints at issue, we stated that we were unable to ascertain whether
Complainant’s claims were properly dismissed because the Agency failed to submit the complete
case files for the four referenced Agency case numbers. In its request for reconsideration, the
Agency repeats its grounds for dismissal of her complaints. It also argues that Complainant’s
appeal of its final decision was untimely filed.

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 (August 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. The Agency
has not done so here. It has not presented any argument or evidence tending to establish the
existence of either reconsideration criterion. Instead, it merely attempts to relitigate its final
decision on the merits, and in so doing, raises the same contentions that we considered and rejected
in our previous decision.

The Agency also raises, for the first time, the issue of the untimeliness of Complainant’s appeal.
The Commission generally does not consider evidence presented for the first time on request for
reconsideration absent a showing that the evidence was not reasonably available during the
proceedings below. Hassanpour v. Dep’t of Homeland Sec., EEOC Request No. 0520110717
(Mar. 9, 2012); Young v. Dep’t of Homeland Sec., EEOC Request No. 0520090377 (Aug. 3,
2009). Here, the Agency has failed to show that either the complaint files or the documentation
of Complainant’s appellate submission were not reasonably available while the appeal was being
processed. Indeed, in neither its final decision nor in its request for reconsideration does the
Agency even attempt to associate Complainant’s claims with any of the particular complaint
numbers referenced above.

After reviewing the previous decision and the entire record, the Commission finds that the
Agency’s request for reconsideration 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.
0120180828 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 (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims within
thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
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As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the Complainant’s request for a hearing, a copy of Complainant’s
request for a FAD, or a statement from the Agency that it did not receive a response from
Complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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 (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or filed your appeal with the Commission. 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.
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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. Filing
a civil action will terminate the administrative processing of your complaint.

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

November 13, 2018
Date