[Redacted], Deon L., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.Download PDFEqual Employment Opportunity CommissionApr 20, 2022Appeal No. 2021000848 (E.E.O.C. Apr. 20, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deon L.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Request No. 2021002441 Appeal No. 2021000848 Agency No. DOS-0237-20 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. 2021000848 (February 9, 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). Complainant was a Library of Congress (LOC) employee working as the Field Director of the LOC’s Kenya Overseas Office, which is located in the U.S. Embassy in Nairobi, Kenya. Complainant contacted an Agency (not the LOC) EEO counselor regarding claims that the U.S. Ambassador to Kenya was subjecting him to a discriminatory hostile work environment. On September 10, 2020, Complainant filed an EEO complaint against the Agency alleging discrimination based on race (“multi-racial”) and disability (associated with autistic son), as well as reprisal for prior protected EEO activity. 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. 2021002441 2 Citing 29 C.F.R. § 1614.103(d)(3), the Agency issued a final decision dismissing Complainant’s EEO complaint for failure to state a claim, reasoning that Complainant is an employee of the LOC, an agency that is not covered by the 29 C.F.R. Part 1614 federal sector EEO process. Complainant appealed. In EEOC Appeal No. 2021000848, we found that, although the Part 1614 federal sector EEO process does not apply to employees of the LOC, the question was whether or not, for the purposes of the EEO complaint process, the State Department could be considered a joint employer of Complainant. We concluded that the record contained limited information regarding the factors to be considered in determining the joint employment issue. We vacated the Agency’s final decision dismissing the EEO complaint and remanded the matter to the Agency to conduct a supplemental investigation on whether it had sufficient control over Complainant to be considered his joint employer for the purpose of utilizing the 29 C.F.R. Part 1614 EEO complaint process. On request for reconsideration, the Agency reiterates arguments previously raised and considered on appeal. The Agency contends that the Commission does not have jurisdiction over Complainant’s appeal because Complainant, as an employee of the LOC, cannot utilize the 29 C.F.R. Part 1614 federal sector EEO process. The Commission has held that “the agency has the burden of providing evidence and/or proof to support its final decisions.” Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993). Here, the Agency has not provided any evidence in the record to determine whether the Agency may be considered a joint employer of Complainant for the purposes of the EEO complaint process. We emphasize that a request for reconsideration is not an appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VII.A (Aug. 5, 2015). 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. 2021000848 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 conduct a supplemental investigation on whether it has sufficient control over Complainant to be considered his joint employer for the purpose of utilizing the 29 C.F.R. Part 1614 EEO complaint process. Thereafter, the Agency shall give Complainant a copy of the supplemental investigation, provide him an opportunity to respond, and include his response in the supplemental investigation. 2021002441 3 Based on the results of the supplemental investigation, the Agency shall issue a new decision accepting the complaint for further processing or procedurally dismissing it with appeal rights to the EEOC. The Agency shall complete the above actions within 60 calendar days of the date this decision is issued. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation verifying the corrective action has been implemented, including a copy of the acceptance letter or final decision, as applicable. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 2021002441 4 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 April 20, 2022 Date Copy with citationCopy as parenthetical citation