Eric S.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionApr 18, 20180520180121 (E.E.O.C. Apr. 18, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eric S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Request No. 0520180121 Appeal No. 0120172208 Agency No. ARREDSTON17FEB00466 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120172208 (October 11, 2017). 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). Complainant filed an EEO complaint in which he alleged that the Agency subjected him to discrimination on the bases of race, sex, and age when: 1. On or about December 15, 2016, his first-line supervisor came to his work station speaking loudly and talking about people retiring; 2. On January 26, 2017, he received a rating of “3” on his performance appraisal for Calendar Year 2016; and 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. 0520180121 2 3. On January 26, 2017, during the same performance meeting, his supervisor informed him that more work would be expected under the 2017 standards, and after Complainant voiced his concern about his being able to meet the new standards, his supervisor told him, “sometimes when older workers are given more work, they tend to go on and retire.” The Agency dismissed that portion of the claim relating to the first incident on the grounds that Complainant failed to contact an EEO Counselor within the prescribed 45-day regulatory time limit. The Agency found that Complainant had withdrawn the part of the claim encompassing the second incident. The Agency dismissed the claim as it pertained to the third incident for failure to state a claim. In our previous decision, we affirmed. 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 (August 5, 2015); see, e.g., Lopez v. Department of Agriculture, EEOC Request No. 0520070736 (August 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. He has not presented any argument or evidence tending to establish the existence of either reconsideration criterion. He merely reargues the merits of his appeal, raising the same contentions that we rejected in our previous 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. 0120172208 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. 0520180121 3 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 18, 2018 Date Copy with citationCopy as parenthetical citation