Matt B.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0520180186 (E.E.O.C. Nov. 30, 2018)

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

Matt B.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Request No. 0520180186

Appeal No. 0120172723

Agency No. FS-2017-00610

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. 0120172723 (Oct. 27, 2017). 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).

On June 1, 2017, Complainant filed a written Step 1 grievance with the National Federation of
Federal Employees, the union representing him, and several management officials within the
National Forest to which he was assigned. The grievance identified a suspension that had been
issued on May 4, 2017 as its subject. Among the remedies sought, Complainant requested that the
suspension be rescinded and removed from his official personnel file, and that he be given back
pay for the days he missed work as a result of the suspension.

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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On June 25, 2017, Complainant filed a formal EEO complaint in which he alleged that the Agency
discriminated against him on the basis of race/national origin (Hispanic – Puerto Rican) when: (1)
on May 4, 2017, he received a notice of decision on a proposed suspension; and (2) on May 1,
2017, he was made aware that his Unit Aviation Officer had accused him of circumventing the
chain of command in his response to an electronic mail filing. The Agency issued a decision
dismissing the complaint for failure to state a claim. The Agency determined that Complainant
had filed a grievance regarding claim (1) and Complainant did not suffer a harm for which there
was a remedy as to claim (2).

In its previous decision, the Commission reversed the Agency’s dismissal of claim (1) and
remanded it for further processing. We found that neither a copy of the grievance nor a copy of
the collective bargaining agreement indicating that allegations of discrimination were permitted to
be the subject of a grievance had been included in the appeal record. We affirmed the Agency’s
dismissal of the second claim. In so doing, we concurred with the Agency’s finding that
Complainant failed to allege facts which, if proven, would establish that he suffered harm or loss
with respect to a term, condition, or privilege of employment for which there was a remedy, noting
that there were no indications that Complainant was in any way disciplined.

In its request for reconsideration, the Agency contends that the previous decision’s reversal of its
dismissal of claim (1) involved an erroneous interpretation of material fact and law. The Agency
maintained that Complainant had initially elected to proceed with his claim via the negotiated
grievance procedure rather than the administrative complaints procedure. The Agency stated that
it provided a copy of the grievance to the Commission in response to Complainant’s appeal and
referenced as Exhibit D to its request a copy of its transmission letter to the Office of Federal
Operations dated August 23, 2017. This letter identified seven exhibits that were purportedly
included in the appeal record. Although the union grievance dated June 1, 2017 was listed as
Exhibit No. 4, the document itself was not present.

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. Department of Agriculture, EEOC
Request No. 0520070736 (August 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.

When a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination to be raised in a negotiated
grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged
employment discrimination must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. 29 C.F.R. § 1614.301(a). An election to proceed under a
negotiated grievance procedure is indicated by the filing of a timely written grievance. Id.

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The Commission notes, however, that the Agency did not submit evidence pertaining to
Complainant’s election until it requested reconsideration. Despite the Agency’s assertions to the
contrary, the June 1, 2017 Step 1 grievance was not among the documents sent to us by the Agency
in response to Complainant’s appeal. That the grievance was listed as an appeal exhibit leads us
to believe that the Agency intended to include the document, but left it out due to an administrative
oversight. However, the Agency was also required to include a copy of the collective bargaining
agreement, which was also missing from the appeal record and, unlike the grievance, was not listed
among the appeal exhibits. Based on the record that was before us when the previous decision
was issued, we cannot find that we clearly erred in reversing the Agency’s dismissal of the first
claim. Our previous decision is consistent with our long-standing policy of placing the burden of
supporting procedural dismissals upon the agencies. See e.g. Adams v. Dep’t of Homeland Sec.,
EEOC Appeal No. 0120054463 (Aug. 31, 2007) (the agency has the burden of providing evidence
and/or proof to support its final decisions); Ericson v. Dep’t of the Army, EEOC Request No.
05920623 (Jan. 14, 1993); Gens v. Dep’t of Def., EEOC Request No. 05910837 (Jan. 31, 1992).

The Commission has consistently declined to consider evidence that was previously available
when such evidence is being presented for the first time in a request for reconsideration. See
Young v. Dep’t of Homeland Sec., EEOC Request No. 0520090377 (Aug. 3, 2009) (complainant’s
request for reconsideration denied where complainant submitted for the first time on
reconsideration evidence that he had discussed a particular basis with an EEO counselor); Sumbler
v. U.S. Postal Serv., EEOC Request No. 05A00344 (Feb. 14, 2002) (agency’s request denied
where on reconsideration, the agency offered a copy of an EEO poster and two affidavits
constituting evidence of availability of said poster that should have been provided before the
Commission’s previous decision was issued). The Agency made no showing whatsoever that
copies of the grievance and the collective bargaining agreement were unavailable prior to its
request for reconsideration.

After reviewing the previous decision and the entire record, the Commission finds that the
Agency’s 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. 0120172723 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 (E1016)

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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A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)

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 in the digital format required by the Commission, and submitted via the
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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. 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.

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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

November 30, 2018
Date