Chara S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Jun 15, 2018

0520180243 (E.E.O.C. Jun. 15, 2018)

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

Chara S.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Request No. 0520180243

Appeal No. 0120172859

Agency No. DECA-00139-2017

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172859 (January 9, 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 her underlying complaint, Complainant alleged that the Agency subjected her to unlawful
discrimination on the bases of her sex and in reprisal for her prior protected EEO activity when
she was harassed while performing her duties as a “bagger” at an Agency commissary. In its final
decision, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure
to state a claim. On appeal, the Commission affirmed the Agency’s dismissal.

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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It did so on the ground that, in the performance of her duties, Complainant was not subject to
sufficient control by the Agency to qualify as an employee for purposes of bringing a claim of
employment discrimination against the Agency.

In her request for reconsideration, Complainant fails to address the central issue upon which the
previous decision turned, i.e., whether she was an employee as defined in Commission precedents.
The previous decision relies on Commission decisions holding that Defense Commissary
“baggers” (the precise position Complainant occupied) are not Agency employees. See, e.g., Jared
F. v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 0120151418
(October 2, 2015), request for reconsideration denied, EEOC Request No. 0520160044 (February
17, 2016); Complainant v. Department of Defense (Defense Commissary Agency), EEOC Appeal
No. 0120141786 (August 27, 2014). Complainant makes no attempt to distinguish those decisions
from the instant case.

We find that Complainant’s arguments do not 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. Accordingly, we find that Complainant failed to
demonstrate that the Commission should reconsider its appellate decision.

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. 0120172859 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

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.
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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 15, 2018
Date