Andres M.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 20, 2016

0520160119 (E.E.O.C. Apr. 20, 2016)

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

Andres M.,1
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Request No. 0520160119

Appeal No. 0120142435

Agency No. 144029500366

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120142435 (Oct. 27, 2015). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision 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).

On May 19, 2014, Complainant filed a formal complaint alleging that the Agency subjected
him to harassment on the basis of disability (perceived) when:

1. In March 2013, Complainant was issued a Notice of Decision removing him from
Federal service for charges of failure to follow supervisory instructions and
impertinent behavior towards a supervisor;
2. On August 24, 2012, he was issued a Notice of Proposed Suspension;
3. On April 12, 2012, he was issued a Notice of Decision of Suspension for five days
for failure to follow supervisory instruction;
4. On March 19, 2012, he was harassed regarding possible revocation of his security
clearance;
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.

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5. On March 9, 2012, he was harassed by being issued a Notice of Proposed
Suspension;
6. On February 29, 2012, he was harassed by being issued a Letter of Instruction
regarding email procedures;
7. On September 28, 2011, he was harassed by being subjected to a psychiatric
evaluation;
8. On May 24, 2011, his supervisor accused him of viewing inappropriate material on
a personal computer;
9. On February 8, 2011, he was issued a Notice of Decision Reprimand;
10. On January 7, 2011, he was issued a Notice of Proposed Reprimand for allegedly
emailing outside the chain of command;
11. On an unspecified date, he was harassed when his supervisor placed Complainant's
desk outside of the supervisor’s cubicle; and
12. On an unspecified date, he was regarded as disabled by four management officials.

The Agency dismissed claims (1) to (11) for untimely EEO contact. The Agency reasoned that
the incidents at issue occurred beyond the 45-day limitation period for initiating EEO contact
for a complaint. The Agency noted that Complainant received notice of his termination on
March 20, 2013, and received the SF-50 on December 2, 2013, 58 days before his initial EEO
contact. In addition, the Agency dismissed claims (11) and (12) as vague as the allegations did
not specify a timeframe, and claim (12) did not identify an actionable claim. Finally, the
Agency dismissed claim (11) for failure to state a claim. As a result, the Agency dismissed the
complaint. Complainant appealed and, in Andres M. v. Dep’t of the Navy, EEOC Appeal No.
0120142435 (Oct. 27, 2015), the Commission affirmed the Agency’s dismissal on the basis of
untimeliness.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and again contends that he has been mistreated. 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) (Aug. 5, 2015),
at 9-18; 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.

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. 0120142435 remains
the Commission's decision. There is no further right of administrative appeal on the decision
of the Commission on this request.

0520160119

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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

April 20, 2016
Date