[Redacted], Kenneth W., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Highway Administration), Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020003338 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kenneth W.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Highway Administration), Agency. Request No. 2021000357 Appeal No. 2020003338 Hearing No. 410-2020-00093X Agency No. 2019-28253-FHWA-03 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003338 (September 11, 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). On March 11, 2019 and October 15, 2019, Complainant filed EEO complaints that were consolidated for processing. He alleged that the Agency discriminated against him on the bases of national origin (Iranian American), religion (Muslim), disability (severe anxiety and depression), age (58), and in reprisal for prior protected 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. 2021000357 2 1. on October 31, 2018, Complainant was placed on Leave Without Pay (LWOP) from October 2 to October 5, 2018, and informed that the medical information he provided was determined inadequate; 2. on January 30, 2019, he received a proposal to terminate his employment; 3. since approximately 2017, management did not grant his reasonable accommodation requests, including medical leave and a change to his work environment; and, 4. on July 9, 2019, he was terminated. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). On October 28, 2019, Complainant submitted a request for a hearing before an AJ. In error, the Agency issued a final decision on May 4, 2020, and Complainant filed an appeal, providing appeal rights to the Commission. However, on June 8, 2020, the Agency determined that it had erred in providing appeal rights to the Commission. The Agency rescinded its final decision dated May 4, 2020, informing Complainant that claims 1 - 3 would be adjudicated pursuant to 29 C.F.R. § 1614.109(a).2 The Agency therefore issued a new final decision solely on claim 4, concerning his termination. The Agency notified Complainant of his appeal rights to the Merit Systems Protection Board (MSPB) or an appropriate U.S. District Court. In EEOC Appeal No. 2020003338, the Commission affirmed the Agency’s final decision to dismiss the appeal of its final decision on the termination decision (claim 4) for lack of jurisdiction because Complainant’s appeal rights were either with the MSPB or federal court. The instant request to reconsider followed. In the request to reconsider, Complainant discusses his history with Agency since November 2016. However, he makes no argument that addresses the propriety of the decision to dismiss his appeal to the EEOC. 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. Complainant’s request for reconsideration is DENIED. The decision in EEOC Appeal No. 2020003338 remains the Commission's decision. The EEOC lacks jurisdiction in this matter. 2 Claims 1 - 3 are pending before an EEOC Administrative Judge in Hearing No. 410-2020- 00093X 2021000357 3 As advised by the Agency, Complainant should file an appeal with the MSPB regarding claim 4 if he wishes to further pursue this matter in an administrative process. 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. 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 22, 2021 Date