U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nathan S.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Request No. 0520180229 Appeal No. 0120151282 Hearing No. 430-2013-00356X Agency No. BOP-2013-0042 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. 0120151282 (February 1, 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). During the period at issue, Complainant worked as a Senior Officer Specialist, GS-8 in the Agency's Low Security Correctional Institution in Butner, North Carolina. Complainant filed a formal EEO complaint alleging he had been subjected to discrimination based on race (African-American) when: 1. In August 2012, a Caucasian employee said to Complainant and another African-American employee, "see you, boys," and on September 27, 2012, the same employee made the statement, "guess I'll see you tomorrow boy." 2. In October 2012, Complainant was denied training. After receiving the Agency's Investigative Report, Complainant requested a hearing before an EEOC Administrative Judge (AJ). While the matter was pending before the AJ, the Agency filed a motion for summary judgment regarding the matter. The AJ granted the Agency's motion and issued a decision without a hearing in the Agency's favor, finding no discrimination. Complainant appealed. Our decision in EEOC Appeal No. 0120151282 modified the AJ's decision. The Commission found that summary judgment in favor of the Agency regarding claim 1 was appropriate because the AJ properly found that the Agency was not vicariously liable for the alleged statements because there was no dispute that Complainant did not report them to anyone in Agency management. Concerning claim 2, however, our prior decision determined that summary judgment should have been granted in favor of Complainant rather than in favor of the Agency. The Commission found that undisputed evidence of record reflects that Complainant was subjected to racial discrimination when he was denied training. According to Agency witnesses, Complainant was not placed on the training roster because he was listed as an alternate security officer and not as a primary. The Agency's Warden further explained that there were not funds available to send Complainant to the training. In our appellate decision, however, we noted that the Agency conceded in its final order that two other Agency employees (both Caucasian) received the training referred to in claim 2 while they were serving as alternate security officers during the same time period Complainant, also an alternate security officer, had his training requests denied. The decision further observed that there was no explanation from the Agency about why it had the funding for training for these two comparators, but not for Complainant. In addition, the decision referenced several witnesses who supported Complainant's view that management intentionally presented obstacles to deny training to African-Americans. Moreover, the appeal record contains an affidavit from a former security officer wherein he stated his belief that the Agency was motivated by discriminatory animus in denying Complainant the training requested in claim 2 and subsequently not promoting Complainant, in part due to lack of training. Our previous appellate decision correctly determined the AJ erred in not citing to the affidavit of the former security officer in this matter. In its request for reconsideration, the Agency argues that the finding of discrimination with respect to claim 2 was improper. However, we emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VILA. 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, we determine 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. 0120151282 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 shall take the following actions within (120) calendar days after this decision is issued, unless otherwise specified: 1. Provide Complainant with the Foley Belsaw training and the Armory training course identified above, as well as any other trainings provided to Officer 2 and Officer 3 during the relevant time. The Agency shall thereafter non-competitively promote Complainant to the position of Security Officer, GS-10, or to a position substantially equivalent to the positions appointed to Officer 2 and Officer 3. The Agency shall also provide Complainant with any other benefits and/or privileges that accompany such trainings. 2. The Agency shall determine the appropriate amount of back pay, with interest and other benefits, due to Complainant pursuant to 29 C.F.R. 1614.501, no later than sixty calendar days after the decision becomes final. The back-pay period shall begin on the earliest date that either Officer 2 or Officer 3 was promoted to the positions in question. Complainant shall cooperate in the Agency 's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty­ five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. 4. Provide a minimum of eight hours of in-person or interactive training to the responsible management officials identified above (the Associate Warden and the Captain) to ensure that they are aware of their obligations, responsibilities, and rights under EEO law, including the right of employees to work in an environment free from racial discrimination. 5. Consider taking disciplinary action against the responsible management officials identified as the Associate Warden and the Captain. 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 the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 6. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." POSTING ORDER (G0617) The Agency is ordered to post at its Low Security Correctional Institution (LSCI) Butner, North Carolina facility 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). ATTORNEY'S FEES (Hl016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.50l(e)(l)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.50l(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 (K0610) 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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in pan, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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 May 11, 2018 __________________ Date 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 7 0520180229