Mckenzie L.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jan 4, 2018

0520170534 (E.E.O.C. Jan. 4, 2018)

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

Mckenzie L.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Request No. 0520170534

Appeal No. 0120170148

Hearing No. 560-2015-00106X

Agency No. BOP-2014-0754

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120170148 (July 14, 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 26, 2014, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the bases of sex (female) and in reprisal for prior protected EEO activity when:

1. On May 3, 2014, Complainant was subjected to harassment in the form of text
messages to her phone from the Executive Assistant;

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. On May 22, 2014, the Warden did not select Complainant for the position of
Associate Warden’s Secretary under vacancy announcement MAR-2014-0015; and

3. On June 12, 2014, Complainant was notified that the Warden did not select her for
the position of Warden’s Secretary under vacancy announcement number MAR-
2014-0023.

The Agency initially accepted claim (1) for processing; however, it held claims (2) and (3) in
abeyance after determining that the matters raised in the claims should be subsumed within a
pending class action, Turner, et al. v. Dep’t of Justice, EEOC No. 541-2008-00255X. The
Turner class action case concerned denial of promotions based on reprisal.

Complainant appealed and, in Complainant v. Dep’t of Justice, EEOC Appeal No. 0120143234
(Feb. 6, 2015), the Commission affirmed the Agency’s decision to hold the reprisal portion of
claims (2) and (3) in abeyance. However, the Commission reversed the Agency’s decision to
hold the sex-based discrimination claims in claims (2) and (3) in abeyance, and remanded
Complainant’s claims of sex discrimination as to claims (2) and (3) for further processing.

After its investigation into the complaint, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ assigned to the matter subsequently issued a decision by
summary judgment in favor of the Agency.

In the decision, the AJ first determined that Complainant failed to show that she was subjected to
sexual harassment or a retaliatory hostile work environment.2 The AJ found that there was no
evidence demonstrating that the text messages at issue were unwelcome, based on Complainant’s
sex, or were sexual advances or requests. Further, there was no evidence that the text messages,
while inappropriate, unreasonably interfered with Complainant’s work environment or created a
hostile work environment. Next, the AJ determined that the Agency had articulated legitimate,
nondiscriminatory reasons for not selecting Complainant for the two positions at issue and that
Complainant had not established that those reasons were pretextual. As a result, the AJ found
that Complainant had not been subjected to a hostile work environment, discrimination, or
reprisal as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision.
Complainant appealed and, in Mckenzie L. v. Dep’t of Justice, EEOC Appeal No. 0120170148
(July 14, 2017), the Commission affirmed the final order implementing the AJ’s decision.

In her request for reconsideration, Complainant expresses her disagreement with the previous
decision and reiterates arguments previously raised during the appeal. The Commission

2 The AJ noted that Complainant’s representative stated that Complainant’s sexual harassment
claim was based on reprisal “because it was the closest one that matched. It’s more of like a quid
pro quo kind of situation.”

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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
presented any evidence to support reconsideration of the Commission’s finding that she failed to
show that she was subjected to discrimination or reprisal. As such, Complainant has not put
forth any persuasive arguments to support granting the request for reconsideration.

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. 0120170148 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.

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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

January 4, 2018
Date