[Redacted], Tiffanie S., 1 Complainant,v.William P. Barr, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Dec 10, 2020

Appeal No. 2020001721 (E.E.O.C. Dec. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tiffanie S.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Request No. 2020005322 Appeal No. 2020001721 Hearing No. 550-2019-00233X Agency No. USM-2019-00799 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020001721 (December 11, 2019). 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 period, Complainant worked as a Management and Program Analyst, GS- 0341-11, in the Agency’s Northern District of California office in San Francisco, California. Complainant’s immediate supervisor was the Administrative Officer (“S1”). Her second-level supervisor was the Chief Deputy United States Marshal (“S2”). Her third-level supervisor was the United States Marshal (“S3”). 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. 2020005322 2 On July 10, 2018, Complainant filed a formal complaint alleging discrimination based on race (Asian), national origin (Chinese), age (over 40), disability (blind), and in reprisal for prior protected activity when, on June 5, 2018, she received a suspension for fourteen days based on the charges of Conduct Unbecoming a United States Marshall Service Employee and Lack of Candor. Specifically, the Agency management asserted that on December 27, 2016, Complainant sent an email to an Agency official from her personal email account. Among other matters, the email and attachment accused the Supervisory Deputy U.S. Marshal of being capable of violence in the workplace, and of yelling at and bullying S1, Complainant’s supervisor. S3, upon being made aware of the email, referred the matter to the Agency’s Internal Investigation Unit (IA Unit). Based on the results of the investigation, the disciplinary action against Complainant was issued. After an investigation into her EEO complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. However, over Complainant’s objections, the AJ granted summary judgment in the Agency’s favor on November 4, 2019. In her decision, the AJ found that the formal complaint could be resolved without a hearing because no genuine dispute of material fact or questions of credibility existed. Following the investigation and report by the IA Unit, Complainant was found to have engaged in the misconduct. The AJ noted that the IA Unit was not within Complainant’s line of authority or chain of command, and its offices were not within the Northern California District. The Chief Inspector and Deciding Officer was in Ohio, and the Proposing Official and all inspectors connected with the investigation did not know Complainant and were not aware of her protected categories until after the investigation commenced. The AJ also noted that the investigation determined that Complainant, using her personal email account, wrote the email and transmitted it, and she lacked candor when she denied sending it but could not provide a plausible explanation for how the email was sent from her computer. The investigation also found that Complainant lacked candor when she denied stating that S3 had previously broken her self-inking stamp. 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. 2020001721 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2020005322 3 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 December 10, 2020 Date