Andres M.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 14, 2018

0520180270 (E.E.O.C. Jun. 14, 2018)

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

Andres M.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Request Nos. 0520180270; 0520180271

Appeal Nos. 0120180705; 0120180817

Agency Nos. ARIMCOMHQ17OCT03660; ARIMCOMHQ17OCT03830

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Andres M. v. Dep’t of the Army, EEOC Appeal Nos.
0120180705, 0120180817 (Feb. 15, 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).

In September 2010, Complainant was permanently barred from Fort Rucker by the Colonel. On
October 17, 2012, Complainant was removed from federal employment. Complainant
subsequently appealed the removal to the Merit Systems Protection Board, which upheld the
removal.

On November 19, 2017, Complainant filed a formal EEO complaint (Agency No.
ARIMCOMHQ17OCT03660) alleging that the Agency subjected him to discrimination in
reprisal for prior protected EEO activity when, on September 7, 2010, the Colonel and other
Agency officials knowingly violated the laws, policies, and regulations and filed false charges to

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.
0520180270; 0520180271

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the Central Clearance Facility regarding the post bar. On December 1, 2017, the Agency
dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. In
addition, the Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(1) for alleging
the same claim as his prior EEO complaints. The Agency noted that Complainant alleged
discrimination regarding the September 2010 barring decision in at least four prior EEO
complaints, one of which was resolved by a settlement agreement.

On November 24, 2017, Complainant filed a second formal EEO complaint (Agency No.
ARIMCOMHQ17OCT03830) alleging that the Agency subjected him to discrimination in
reprisal for prior protected EEO activity when, on September 7, 2010, the former Garrison
Commander and the Agency Labor Attorney violated the terms and conditions of his
employment involving a post bar and security actions. Complainant indicated that he received
documents pursuant to a Freedom of Information Act (FOIA) request which he believed
supported his prior claims. On December 8, 2017, the Agency dismissed the complaint for
failure to state a claim and for alleging the same claim as that raised in a prior complaint.

Complainant appealed both final decisions and the Commission consolidated the appeals and
addressed the appeals in a single decision. In Andres M. v. Dep’t of the Army, EEOC Appeal
Nos. 0120180705, 0120180817 (Feb. 15, 2018), the Commission found that the Agency properly
dismissed the complaints pursuant to 29 C.F.R. § 1614.107(a)(1) for alleging the same claim in
prior EEO complaints. Complainant filed the instant requests for reconsideration. The
Commission will consolidate the requests for a single decision.

In his requests for reconsideration, Complainant again argues that the Agency broke
administrative and ethical rules of conduct. 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. Complainant has not done so here.
Complainant has presented no evidence to support reconsideration of the Commission’s finding
that he raised the claims at issue in previous EEO complaints which were addressed in prior
Commission decisions. As such, Complainant has not put forth any persuasive arguments to
support granting the requests for reconsideration.

After reviewing the previous decision and the entire record, the Commission finds that the
requests fail to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to DENY the requests. The decision in EEOC Appeal Nos. 0120180705 and
0120180817 remains the Commission’s decision. There is no further right of administrative
appeal on the decision of the Commission on these requests.

0520180270; 0520180271

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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

June 14, 2018
Date