U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elbert H.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Request No. 2019002907
Appeal No. 0120170676
Agency No. BOP20140759
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. 0120170676 (October 31, 2018).
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 worked as a Correctional Officer/Senior Officer at the Agency’s Schuylkill Federal
Correction Institute in Minersville, Pennsylvania. Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the basis of disability and in reprisal for prior
protected activity when, on May 30, 2014, he received correspondence from management
regarding a fitness-for-duty evaluation and threat of termination based on information received
during the EEO hearing process (for an EEO complaint filed in 2011).
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.
20190029072
Our lengthy decision in EEOC Appeal No. 0120170676 reversed the Agency’s findings that it
had not subjected Complainant to unlawful retaliation based on his prior EEO activity. We noted
that in its final decision, the Agency conceded that, “[t]he record demonstrates that language
from Complainant’s EEO pleading did in fact lead directly to [the HR Manager’s] actions. The
timing of [her] actions as well as her quotes using Complainant’s language show that
Complainant’s EEO pleading was the source of the potentially career-jeopardizing health
information.” Our prior appellate decision found it was clear that the Agency Attorney in the
2011 complaint directed the Agency’s actions in issuing the “8-point letter” to Complainant and
concluded this amounted to unlawful retaliation. The decision rejected the Agency’s argument
that it had legitimate, non-discriminatory reasons for its actions. Instead, the decision concluded
there was direct evidence that the Agency took the materially adverse action because of
Complainant’s EEO activity.
In its request for reconsideration, the Agency again argues that there was no retaliatory motive or
animus on the part of the Agency. However, we conclude that our decision in EEOC Appeal No.
0120170676 correctly lays out the facts, legal justifications, and reasons for reaching its
conclusion. 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. 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. 0120170676 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 take the following remedial actions within 120 days of the date this
decision is issued:
1. The Agency shall conduct a supplemental investigation to determine whether
Complainant is entitled to compensatory damages as a result of the Agency’s
reprisal. The Agency shall afford Complainant an opportunity to establish a causal
relationship between the Agency’s violation of the Rehabilitation Act and any
pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency’s
efforts to compute the amount of compensatory damages he may be entitled to
and shall provide all relevant information requested by the Agency. The Agency
shall issue a new Agency decision determining Complainant’s entitlement to
compensatory damages. The final decision shall contain appeal rights to the
Commission. The Agency shall submit a copy of the final decision to the
Compliance Officer at the address below.
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2. The Agency shall provide eight (8) hours of training to the responsible
management officials including the Attorney and the HR Manager, regarding their
responsibilities under the Rehabilitation Act. The training shall have a special
emphasis on these employees’ responsibilities with respect to Section 501 of the
Rehabilitation Act of 1973 and the prohibition against reprisal.
3. The Agency shall consider taking disciplinary action against the responsible
management officials, including the Agency Attorney 1 and the HR Manager. The
Commission does not consider training to be disciplinary action. The Agency
shall report its decision to the Compliance Officer. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency decides not to
take disciplinary action, it shall set forth its reason(s) for its decision not to
impose discipline. If any of the responsible management officials are no longer
employed by the Agency, the Agency shall furnish documentation of their
departure dates.
4. The Agency shall post a notice in accordance with the paragraph below entitled
“Posting Order.”
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
POSTING ORDER (G0617)
The Agency is ordered to post at its Schuylkill Federal Correction Institute, located in
Minersville, Pennsylvania copies of the attached notice. Copies of the notice, after being signed
by the Agency's duly authorized representative, shall be posted both in hard copy and
electronic format by the Agency within 30 calendar days of the date this decision was issued,
and shall remain posted for 60 consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. The Agency shall take reasonable steps to
ensure that said notices are not altered, defaced, or covered by any other material. The original
signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled
"Implementation of the Commission's Decision," within 10 calendar days of the expiration of the
posting period. The report must be in digital format, and must be submitted via the Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
20190029074
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.
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.
20190029075
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
July 2, 2019
Date
