[Redacted], Betty T., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Sep 7, 2021

Appeal No. 2020002760 (E.E.O.C. Sep. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Betty T.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce, Agency. Request No. 2021003093 Appeal No. 2020002760 Hearing No. 440-2018-00342X Agency No. 63-2017-00230 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020002760 (March 29, 2021). 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). During the relevant time, Complainant was employed by the Agency as a Field Representative, GS-04, at its Field Division, Chicago Regional Office. On November 21, 2017, Complainant filed a formal complaint. Therein, Complainant claimed discrimination and harassment based on sex (female), age (over 40), disability, and in reprisal for prior EEO activity when: 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. 2021003093 2 1. On an ongoing basis, Agency officials failed to adequately address her concerns regarding treatment by survey respondents, co-workers, and management officials. Examples include: a. In or around February 2017, she advised her first level supervisor (S1), Field Supervisor, that a respondent commented to her about her panties. He provided no response, offered no suggestions, and did not remove her responsibilities pertaining to the respondent. b. In or around March 2017, she complained to S1 and her second level supervisor (S2), Survey Specialist, about calls and visits from other employees contacting respondents. Neither official responded, provided suggestions, or otherwise took corrective action. c. On or around April 25, 2017, she sent an e-mail to S1 outlining her concerns regarding co-workers re-interviewing survey respondents. S1 replied that he would forward her e-mail to survey officials, but she never received any response. d. In or around May 2017, she complained to S1 that the same respondent referenced in Claim 1a cursed at her and told her to not come back to his house or speak to his neighbors. S1 again provided no response, offered no suggestions, and refused to remove her responsibilities pertaining to the respondent. e. On or around June 4, 2017, she e-mailed S1 expressing frustration with her workload and difficulty traveling to cases assigned to her that were outside of her assigned area. She also advised that she felt bullied by the constant unnecessary pressure from S1 and S2. He did not respond to or address her concerns. f. On or around July 18, 2017, she reported to S1 that a respondent became angry with her, physically intimidated her, and instructed her to leave his property. S1 failed to respond or take corrective action and had failed to advise that the respondent had previously refused to cooperate with another Field Representative. g. On or around September 19, 2017, S1 failed to respond to her concerns that she was still being required to drive long distances on a consistent basis despite having informed him of her physical medical limitations. 2. On or about April 27, 2017, the Program Supervisor and the Regional Director issued her a "Five Day Letter" alleging her potential fraudulent reporting and requiring her to submit a written reply within five days, as a means to harass, intimidate, and retaliate against her. 3. On an ongoing basis, Agency officials made bullying, condescending, and dismissive comments to her. Examples include: 2021003093 3 a. On or around May 8, 2017, she told S1 that she felt bullied by the Five-Day Letter referenced in Claim 2, and he responded that it was a "bullying tactic," but offered no further comments or remedies. b. During a conference call on or around May 12, 2017, S2 repeatedly instructed Complainant to "calm down" in a condescending tone, dismissing her concerns and claiming that the letter she received, referenced in Claim 2, was not a Five-Day Letter. S2 and S1 also failed to provide her with requested policies, procedures, rights, and options pertaining to Five-Day Letters. c. When she reported to S1 on or around May 18, 2017, that long drives she was required to make for survey work were causing her pain and she was unable to keep up with her work due to her disabilities, he responded that she was required to work 70 hours for the first two weeks of May 2017. He added that cases she had not yet arranged an appointment for would be shared with co-workers for them to complete. He stated, "this is how [S2] wants it” and "it's not going to stop." d. On or around June 7, 2017, S1 sent three e-mails written in an "angry and/or demeaning tone" regarding concerns she raised to their team. S1 also instructed her to email him by close of business the next day explaining why she had attempted to make only one appointment with a survey respondent. e. Between April and July 2017, S1 made multiple inappropriate and strange comments to her via telephone and text message, including: calling her "selfish" when he engaged in an argument with her on June 5, 2017; stating he "needs to talk to field representatives [actually] working in the field"; mockingly saying he "feels so incompetent now, [he] may be psychologically damaged for life"; stating that he "feels sorry for them, like kids on the short bus"; stating "the word 'useless' comes to mind"; asking her "[d]id you call for a reason or just to vent?"; repeatedly yelling "[l]isten up! Listen up! Listen up!" in response to her concerns; and asking "[w]here else are you going to find a job making $17.00 per hour?" f. On or around September 18, 2017, when disputing whether she or another Field Representative was responsible for a case assignment, S1 told her "[w]ell, one of you have to take the [Type] A." g. On or around September 28, 2017, she complained to S1 that it was unfair she was being held responsible for survey goals of two other Field Representatives, to which he responded, "[t]hat is the way it is." He further stated, "[t]hey will just say you had enough time to work on it." When she replied that he could hold another Field Representative responsible, he responded, "[s]o, you just want me to charge her? ... [y]ou want me to call her on annual leave to ask her? ... [t]he [Type] A's may have been charged already." He then sent her an e-mail summarizing their conversation "in order to create a paper trail." 2021003093 4 4. After the May 12, 2017 conference call referenced in Claim 3b, S1 instructed her which programs to work on, what days and times to do so, and asked her to provide her work plan for each week via e-mail. He did not compel other Field Representatives to provide the same information. 5. In or around May 2017, S1 reduced her workload and gave copies of her cases to a coworker; despite the fact that Complainant had met or exceeded her goals and the coworker had not completed her own cases. S1 did not similarly provide Complainant with copies of any of the coworker's cases. 6. She was denied reasonable accommodation, as detailed in Claims 1e, 1g, and 3c, above. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. In sum, the AJ determined that Complainant failed to provide required medical documentation to support her accommodation request (regarding driving distances). Regarding her harassment claim, considering all the events, the AJ found that Complainant failed to show that the matters were related to any protected basis of discrimination. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. Complainant appealed. In EEOC Appeal No. 2020002760, the Commission concluded that the evidence of record fully supported the AJ’s decision that Complainant’s allegations of discrimination had not been proven. In her request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during her original appeal. 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. Complainant 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. 2020002760 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021003093 5 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. 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 September 7, 2021 Date