[Redacted], Minda W., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Aug 11, 2021

Appeal No. 2020002880 (E.E.O.C. Aug. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minda W.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Request No. 2021003149 Appeal No. 2020002880 Hearing No. 550-2016-00120X Agency No. FS-2015-00441 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020002880 (March 30, 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 worked for the Agency as a Visitor Service Front Desk Clerk at Stanislaus National Forest in Mi Wuk Village, California. On June 22, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex, (female), 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. 2021003149 2 1. on January 22, 2015, she was suspended for 10 days; and 2. on several dates, she was subjected to various incidents of harassment, including but not limited to the following events; a. in October 2013, management called her at home while she was on furlough; b. in February 2014, management delayed approval of her Family and Medical Leave Act (FMLA) leave; c. from March 2014 to March 2, 2015, the second-line supervisor delayed her detail assignment; d. on April 7, 2014, she was accused of being Absent Without Official Leave while she was on FMLA leave; e. on July 7, 2014, her supervisor threatened to cancel her detail assignment until she agreed to alter certain terms and benefits of her employment; f. on July 8, 2014, she learned that her second-line supervisor was soliciting false allegations against her from her co-workers, in an effort to discipline her; g. on July 10, 2014, she was threatened and harassed during a pre-action interview; h. on February 6, 2015, she discovered that her second-line supervisor had made false allegations of misconduct against her and violated her confidentiality; i. on March 5, 2015, management intentionally advertised a detail opportunity during her suspension; j. on March 25, 2015, she was accused of coming to work late; k. on an unspecified date, she was prohibited from helping another employee who had gone to the hospital; l. on an unspecified date, she was told “go get your butt in the seat and do you (sic) job; and m. on unspecified dates, management publicly chastised her, yelled at her, and treated her differently than other employees. 2021003149 3 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. On August 19, 2016, the AJ1 determined that there was a genuine issue of material fact in dispute and that summary judgment would be inappropriate. AJ1 denied the Agency’s motion for summary judgment. The matter was later reassigned to AJ2. On January 8, 2020, AJ2 determined that the AJ1 erred in the prior denial and granted summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ2’s finding that Complainant failed to prove discrimination as alleged. In her decision, the AJ concluded that the record fails to demonstrate that the Agency unlawfully discriminated against Complainant. The AJ noted that Complainant “engaged in an undisputed pattern of provocative behavior and management responded by exercising its broad, nondiscriminatory authority in response. Evidence that such respond was flawed or misguided, without more, fails to demonstrate either discriminatory motive or a hostile work environment.” In EEOC Appeal No. 2020002880, 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. 2020002880 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021003149 4 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 August 11, 2021 Date