Theresia B.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Feb 2, 2018

0520170607 (E.E.O.C. Feb. 2, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Theresia B.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Request No. 0520170607

Appeal No. 0120171839

Agency No. HS-TSA-26290-2016

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Theresia B. v. Dep’t of Homeland Sec., EEOC Appeal
No. 0120171839 (July 18, 2017). 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).

Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an
EEO Counselor on May 9, 2016, to initiate the EEO complaint process. On August 4, 2016, the
EEO Counselor emailed Complainant the Notice of Right to File a Complaint (hereinafter
referred to as “Notice”), indicating that a formal EEO complaint must be filed within 15 calendar
days of receipt of the Notice.

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.
0520170607

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On September 25, 2016, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her on the bases of sex (female) and age when, on or about May 9, 2016,
she learned that her pay would be reduced from J-Band to G-Band effective June 12, 2016. On
March 31, 2017, the Agency dismissed Complainant's formal complaint, pursuant to 29 C.F.R.
§ 1614.107(a)(2), as untimely filed. Specifically, the Agency determined that the September 25,
2016 formal complaint was filed more than 15 days after Complainant had received the Notice
on August 4, 2016.

Complainant appealed and, in Theresia B. v. Dep’t of Homeland Sec., EEOC Appeal No.
0120171839 (July 18, 2017), the Commission reversed the Agency’s dismissal. In so doing, the
Commission determined that Complainant had provided sufficient justification to excuse her
delay in filing her formal complaint. Complainant explained that she had been advised by the
EEO Counselor that she should not open the emailed Notice until she was ready to do so because
at that point, the 15-day limitation period “starts to tick.” The record further revealed that
Complainant had several life events that occurred that prevented her from preparing her EEO
complaint. The Commission concluded that Complainant acted in good faith and in reliance on
the EEO Counselor’s advice in waiting until mid-September 2016 to open the Notice.
Accordingly, based on the specific circumstances presented, the Commission exercised its
discretion to excuse Complainant’s delay in the filing of her formal complaint. The Commission
remanded the matter for further processing.

In its request for reconsideration, the Agency expresses its disagreement with the appellate
decision and argues that the Commission erred in not affirming its procedural decision. The
Agency contends that the Commission wrongly relied upon Complainant’s self-serving evidence
in deciding that Complainant’s delay was excusable. Accordingly, the Agency requests that the
Commission grant its request for reconsideration. In response, Complainant requests that the
Commission deny the Agency’s request for reconsideration.

The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No.
0520070736 (Aug. 20, 2007). 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
Commission is unpersuaded by the Agency’s arguments that the Commission’s acceptance of
Complainant’s evidence was a clearly erroneous interpretation of the record. Furthermore, the
Agency has not shown that the Commission clearly erred in exercising its discretion excusing
Complainant’s delay in filing her formal complaint based on the specific circumstances present.

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. 0120171839 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.
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ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. 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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission.
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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. Filing a civil action will terminate the administrative processing of your
complaint.

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 2, 2018
Date