Emilia Z.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 7, 2018

0520180476 (E.E.O.C. Dec. 7, 2018)

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

Emilia Z.,1
Complainant,

v.

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

Request No. 0520180476

Appeal No. 0120180905

Agency No. ARUSMA17SEP03516

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. 0120180905 (June 5, 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 the underlying complaint, Complainant alleged that the Agency subjected her to discrimination
based on race (African American) and color (Black) by a named investigating officer conducting
a “15-6” administrative investigation into alleged misconduct on her part that resulted in the
issuance of a proposed 30-day suspension on August 28, 2017. Specifically, Complainant alleged
that when she received her proposed suspension on August 28, 2017, she became aware that: (1)
the investigating officer did not interview any African American employees at the Cadet Bookstore
during his investigation; (2) the investigating officer substantiated a claim of improper use of a
government vehicle in his 15-6 investigation without collecting sufficient data; and (3) the
investigating officer found her guilty of nepotism concerning the employment of her cousin during

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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his 15-6 investigation, while a Caucasian employee was treated differently concerning the
employment of her son.

The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim. Our previous decision reversed the Agency’s dismissal. We found that a fair reading of
the complaint showed that Complainant was challenging the issuance of the proposed 30-day
suspension2 alleging it was issued based on the results of an investigation tinged by discrimination
and that such an allegation stated a valid claim under Title VII.

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. The Agency
has not done so here. While the Agency argues that our previous decision constitutes an erroneous
interpretation of law and material fact, it has not presented any argument or evidence tending to
establish the existence of either reconsideration criterion. The Agency merely raises arguments
that we considered and rejected in our previous decision. As the Commission noted in our previous
decision, merely conducting an internal investigation into alleged misconduct, without more,
generally does not render a complainant aggrieved. However, the Commission found that under
the specific circumstances present in the instant case, Complainant’s allegation sufficiently stated
a claim under Title VII. We discern no persuasive argument or evidence in the Agency’s request
for reconsideration that satisfy the criteria for granting a request to reconsider.

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. 0120180905 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 (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims within
thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.

2 We noted in our previous decision that if the proposed suspension became final, it would merge
as the issue herein.
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As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
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.
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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

December 7, 2018
Date