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

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2019003274 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bertram K.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Railroad Administration), Agency. Request No. 2021000286 Appeal No. 2019003274 Agency No. 2014-25847-FRA-03 DECISION ON REQUEST FOR RECONSIDERATION On September 21, 2020, Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019003274 (August 18, 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). Complainant worked as a Railroad Safety Inspector in the Motive Power and Equipment Division of the Agency’s Region 3 Office of Safety in Atlanta, Georgia. Complainant filed multiple EEO complaints based on his sex (male), disability (tinnitus), age (56), and in reprisal for prior protected EEO activity. The separate complaints were dismissed by the Agency and appealed to the Commission by Complainant. The Commission consolidated the claims and reversed the Agency’s dismissals. See Emanuel W. v. Dep’t of Transportation, EEOC Appeal Nos. 0120161758, 0120162686, 0120161055, 0120161229, 0120161788 (March 28, 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. 2021000286 2 The claims were remanded for further processing. See id. Following an investigation, the Agency issued a decision finding no discrimination. Complainant filed an appeal of the decision with the Commission. In our prior decision, we considered Complainant’s reasonable accommodation claim, disparate treatment claim, and hostile work environment claim and determined that he did not prove the Agency’s actions were discriminatory. See EEOC Appeal No. 2019003274 (August 18, 2020). Regarding a denial of a reasonable accommodation, assuming for the purposes of analysis that Complainant was a “qualified individual with a disability”, the Commission found that Complainant notified the Agency of his need for an accommodation when he indicated that he could not communicate by telephone due to increased intensity of the ringing sensation caused by tinnitus. See id. During the interactive process, the Agency directed Complainant to undergo a hearing evaluation by a physician. See id. Complainant did not provide the evaluation until September 2014, after the allegedly discriminatory incidents concerning AWS, AWOL, and the denial of travel expenses. See id. When Complainant did submit the report, the Agency found it to be insufficient because it did not include a medical opinion addressing the potential impact of tinnitus on Complainant’s ability to perform railroad safety inspections. See id. The Commission concluded that by permitting Complainant to telework and providing him with technical assistance when needed, the Agency fulfilled it obligations under the Rehabilitation Act. See id. Regarding claims of disparate treatment, the Commission noted that Complainant was not authorized to work an AWS between May 18 and July 11, 2014. See id. Complainant was directed to telework and not conduct any field investigations on railroad property, based upon safety concerns. See id. When Complainant violated the order, he was not paid for those hours worked nor were his travel vouchers approved. See id. We found that Complainant failed to show that the Agency’s proffered, non-discriminatory reasons were pretext to mask discriminatory animus. See id. Finally, we concluded that a finding of an unlawful hostile work environment was precluded by the determination that the Agency’s actions were not motivated by Complainant’s sex, disability, age, or prior EEO activity. See id. The Commission affirmed the Agency’s decision finding that Complainant failed to meet his burden in proving discrimination. See id. Complainant has now filed a request to reconsider our prior appellate decision in EEOC Appeal No. 2019003274. In his lengthy brief, Complainant asks the Commission to recall that it previously found against the Agency, as did a federal court.2 Complainant contends that the Agency failed to investigate all the remanded claims as ordered by the Commission in EEOC Appeal No. 0120150967, and the Commission missed important facts in deciding EEOC Appeal 2019003274. 2 Complainant asserts that he prevailed in a civil action filed regarding a non-selection. 2021000286 3 Complainant repeatedly argues that the Agency subjected him to a “bait and switch” tactic with respect to the numerous emails and letters he received from various Agency officials. Specifically, Complainant believed that his responses were ineffectively directed to the individual who signed a particular letter, when they were not the “true authors,” in an effort to “prevent him from being able to present his side of the story.” Complainant proceeds to address the merits of each incident, disputing the Agency’s managerial decisions. In closing, Complainant contends that the instant case is “a continuation of the discrimination found by a Federal Jury”, reasoning that if he had been selected for the position in Vancouver, Washington, he would not be involved with the discriminatory officials in Atlanta. To merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989). Complainant has not met the bar for granting reconsideration. His request merely reiterates points raised, or should have been raised, on appeal. A request for reconsideration is not merely a form of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. USPS, EEOC Request No. 05900769 (September 27, 1990). 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. 2019003274 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. 2021000286 4 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 February 2, 2021 Date