0520150460
01-28-2016
Norberto G.,1 Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Norberto G.,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Request No. 0520150460
Appeal No. 0120122963
Agency No. TVA-2012-006
DECISION ON REQUEST FOR RECONSIDERATION
The agency timely requested reconsideration of the decision in EEOC Appeal No. 0120122963 (June 17, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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).
During the period at issue, Complainant worked for the Agency as a Corrective Action Program Manager in Spring City, Tennessee. Complainant filed a formal EEO complaint alleging discrimination based on race and age.
Our prior appellate decision reversed the Agency's procedural dismissal and vacated its finding of no discrimination.
In its Request for Reconsideration, the Agency argues that the Commission erred in reversing the Agency's procedural dismissal and vacating its finding of no discrimination. Specifically, the Agency argues that Complainant's August 24, 2011 EEO contact with regard to a non-selection claim, identified as Claim 2, was untimely raised with an EEO Counselor. The Agency argues that on December 17, 2010, Complainant completed No Fear training which outlined the requisite 45-day time limit for initiating an EEO Counselor contact. The Agency further states that "because the Partial Acceptance was created before the completion of the investigation of other claims, the training materials were not available." We noted that the Agency submitted a copy of Complainant's December 17, 2010 training, which outlined the requisite 45-day time limit for initiating an EEO Counselor contact. However, the record contains no affidavits from management officials asserting that the training outlined the 45-day limitation period. We further acknowledge the Agency's assertion that Complainant acknowledged an awareness of the 45-day period. We further note, however, that this matter was expressly addressed and properly analyzed by the Commission in the prior decision. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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.
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. 0120122963 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
The Agency is ORDERED to take the following actions:
1. Process the dismissed non-selection claim.
2. Conduct an investigation concerning the dismissal claim and, also, conduct a supplemental investigation to develop an adequate factual record and to obtain evidence relevant to the issue of the alleged discriminatory compensation.
3. Thereafter, the Agency shall provide Complainant with an opportunity to review the Report of Investigation prepared in the non-selection claim and the information from the supplemental investigation and to provide any rebuttal. The Agency shall provide Complainant thirty (30) calendar days to review the Report of Investigation and the supplemental investigation, to provide a rebuttal, and to request a hearing before an EEOC Administrative Judge or to request the issuance of an Agency decision.
4. The Agency shall complete these actions within one hundred and twenty (120) calendar days of the date that this decision becomes final, unless the matter is otherwise resolved prior to that time.
The Agency shall submit a compliance report as referenced immediately below. This report must include a copy of the supplemental investigative report and either Complainant's request for a hearing or the Agency's decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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.
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 Complainants 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 28, 2016
__________________
Date
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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