Miles N.,1 Complainant,v.Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Jul 11, 2018

0520180254 (E.E.O.C. Jul. 11, 2018)

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

Miles N.,1
Complainant,

v.

Martin J. Gruenberg,
Chairman,
Federal Deposit Insurance Corporation,
Agency.

Request No. 0520180254

Appeal No. 0120173073

Agency No. FDICEO-17-011

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Miles N. v. Fed. Deposit Ins. Corp., EEOC Appeal No.
0120173073 (Jan. 24, 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).

On April 26, 2017, Complainant filed a formal EEO complaint alleging that the Agency
subjected him to discrimination in reprisal for prior protected EEO activity when:

1. On December 29, 2016, CSRA Supervisor denied Complainant’s request to telework
as a reasonable accommodation; and

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 January 3, 2017, Vice President of Finance Operations, Professional Resources in
Information Systems Management, Inc. (PRISM), notified Complainant that he was
terminated.

On August 16, 2017, the Agency dismissed the formal complaint finding that Complainant was
not an Agency employee. The Agency cited the factors set forth in Ma v. Dept. of Health and
Human Servs., EEOC Appeal Nos. 01962389 and 01962390 (May 29, 1998), and concluded that
there was no employer/employee relationship between Complainant and the Agency.

Complainant filed an appeal with the Commission. In Miles N. v. Fed. Deposit Ins. Corp.,
EEOC Appeal No. 0120173073 (Jan. 24, 2018), the Commission dismissed the appeal as
untimely filed. The Commission found that the Agency’s decision was signed for and received
at Complainant’s attorney’s office on August 21, 2017, therefore making his September 21, 2017
appeal untimely filed. The Commission was unpersuaded by Complainant’s attorney’s
arguments that she actually did not receive the decision until August 22, 2017, because she was
out of the office attending a funeral and that the decision was delivered after the firm’s office
hours. The Commission noted that an individual at Complainant’s attorney’s law firm signed for
the decision on August 21, 2017; thus, that was the date of receipt and Complainant’s appeal was
therefore untimely filed.

In his request for reconsideration, Complainant, through his attorney, expresses his disagreement
with the previous decision and reiterates 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), 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. Complainant has not presented any evidence demonstrating
that the Commission erred in finding that his appeal was untimely filed.

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. 0120173073 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
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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

July 11, 2018
Date