Priscila F.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0520180477 (E.E.O.C. Oct. 31, 2018)

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

Priscila F.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.

Request No. 0520180477

Appeal No. 0120181476

Agency No. USM201701100

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. 0120181476 (June 12, 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 Deputy United States Marshal, filed an EEO complaint on October 31, 2017, in
which she alleged that the Agency had discriminated against her on the bases of sex and in reprisal
for prior protected EEO activity when, on August 15, 2017, she was advised by district
management that she was the subject of an internal investigation. The Agency dismissed the
complaint on the ground that Complainant had filed it one day late, emphasizing that the 15-day
time period for filing the complaint expired on October 30, 2017.

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.
0520180477

2
In our previous decision, we reversed the Agency’s final decision and ordered the Agency to
process the remanded allegations. In so doing, we found that the day after Complainant received
notice of her right to file an EEO complaint, she flew out of town for a high-threat security detail
that was supposed to last for five days, but had lasted for 10. We also found that the detail was in
a different state from her residence and her duty station, and that Complainant was unable to obtain
the necessary files for filing her complaint until October 26, 2017. Citing EEOC Regulation 29
C.F.R. § 1614.604(c), we found that the particular circumstances of Complainant’s situation were
sufficient to justify the brief delay in the filing of her formal complaint. In its request for
reconsideration, the Agency argues that the Commission erred in invoking 29 C.F.R. §
1614.604(c) to permit a one-day extension of the time limit for filing a complaint.

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. The Agency
has not done so here. While the Agency argues that our previous decision constitutes an erroneous
interpretation of law and material fact, it has not presented any argument or evidence tending to
establish the existence of either reconsideration criterion. The Agency merely raises arguments
on the merits of the case that we considered and rejected in our previous decision. The fact remains
that 29 C.F.R. § 1614.604(c) allows the Commission to exercise its discretion and extend a time
limit if it deems such action to be appropriate under the circumstances, and the Commission has
done so here.

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. 0120181476 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.

0520180477

3
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 (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.
0520180477

4
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

October 31, 2018
Date