[Redacted], Abe K., 1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Highway Administration), Agency.

Equal Employment Opportunity Commission

Oct 28, 2020

Appeal No. 2019003060 (E.E.O.C. Oct. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Abe K.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Highway Administration), Agency. Request No. 2020004300 Appeal No. 2019003060 Agency No. 1017-27190-FHWA-06 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Abe K. v. Department of Transportation, EEOC Appeal No. 2019003060 (June 16, 2020). 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). In his underlying complaint, Complainant alleged the Agency subjected him to discrimination in reprisal for prior protected EEO activity when: 1. On March 15, 2016, Complainant learned that a document referencing his EEO complaint, including his EEO complaint numbers had been left in a public place by the bridge office printer; 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. 2020004300 2 2. On September 14, 2016, Complainant learned that his supervisor had posted appointments regarding his EEO activity on her shared calendar that was visible to everyone throughout the organization on the following dates: June 19 and 29, 2015; July 9 and 23, 2015; September 10, 2015; and September 14, 2016. The Agency dismissed both claims on procedural grounds. Complainant appealed the Agency’s dismissal and in EEOC Appeal No. 0120171815 (October 3, 2017), the Commission affirmed the dismissal of claim 1 and reversed and remanded claim 2 to the Agency for further investigation. As indicated in the Agency’s November 2, 2017 revised letter of acceptance, Complainant’s complaint was defined as the following manner: Whether Complainant was discriminated against based on reprisal for prior protected EEO activity, when on September 14, 2016, he learned that his supervisor had posted appointments regarding his EEO activity on her shared calendar that was visible to everyone throughout the organization. Following an investigation on the remanded claim, the Agency issued a final decision finding no discrimination. Complainant appealed the Agency’s decision to the Commission. In EEOC Appeal No. 2019003060, the Commission affirmed the Agency’s final decision because the preponderance of evidence did not establish that unlawful retaliation occurred. 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. 2019003060 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. 2020004300 3 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 28, 2020 Date