Freddie M.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Oct 26, 2018

0520180352 (E.E.O.C. Oct. 26, 2018)

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

Freddie M.,1
Complainant,

v.

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

Request No. 0520180352

Appeal No. 0120162271

Agency No. PE-FY-100-77

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. 0120162271 (April 11, 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).

Complainant filed a complaint alleging a number of claims, including harassment, failure to
reasonably accommodate, and termination. In Freddie M. v. Dep’t of Def., EEOC Appeal No.
0120140976 (Jan. 8, 2016), we found liability on the reasonable accommodation issue and ordered
the Agency to conduct a supplemental investigation regarding Complainant’s entitlement to
compensatory damages. Complainant filed a request for reconsideration on his other claims, which
we denied in Freddie M. v. Dep’t of Def., EEOC Request No. 0520160210 (Aug. 3, 2016).

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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While Request No. 0520160210 was pending, the Agency attempted to conduct the supplemental
investigation into Complainant’s claim for compensatory damages that we ordered in Appeal No.
0120140976. However, Complainant declined to provide any information concerning damages to
the EEO investigator despite being asked to do so several times. Complainant had insisted that
the Agency was forcing him to disclose what he believed to be confidential matters pertaining to
his pending request for reconsideration before the Commission.

The Agency issued a final decision on June 14, 2016 in which it found that Complainant presented
no evidence of his entitlement to compensatory damages. Complainant appealed and, in Freddie
M. v. Dep’t of Def., EEOC Appeal No. 0120162271 (Apr.11, 2018), we vacated the Agency’s
FAD and repeated the order from Appeal No. 0120140976, instructing the Agency to conduct
another supplemental investigation on damages. In doing so, we stated in our previous decision:

During the time of the Agency’s supplemental investigation, Complainant was not
represented by an attorney and had a request for reconsideration pending before
OFO. If OFO had granted Complainant’s request for reconsideration and found
discrimination regarding his other claims, he may have been entitled to a higher
amount of compensatory damages.

In its request for reconsideration, the Agency maintained that Complainant failed to cooperate in
its supplemental investigation on compensatory damages. In addition, the Agency stated:

It is entirely unclear to the Agency how Complainant’s choice to proceed without
an attorney or his then-pending request for reconsideration – denied on August 3,
2016 – concerning his other claims (harassment and termination) are logically
related or legally relevant to the matters at hand, namely the Agency’s supplemental
investigation into Complainant’s compensatory damages or the resulting FAD. Had
OFO granted Complainant’s request for reconsideration related to his other claims,
which it did not, OFO would have issued another decision in which it would have
ordered the Agency to take additional actions related to those claims, separate and
apart from the supplemental investigation into Complainant’s compensatory
damages that OFO had already ordered the Agency to 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.

The Agency has not done so here, nor has it addressed the specific circumstances of this case which
were pointed out in the previous decision, namely that Complainant had two active proceedings
going on at the same time: the pending request for reconsideration on the claims for which
discrimination had not been found and the supplemental investigation for damages arising out of
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the reasonable accommodation claim, upon which discrimination had been found. According to
our previous decision, Complainant was genuinely and legitimately concerned about whether he
was being asked to provide confidential information pertaining to the adversarial proceeding, the
request for reconsideration. The Agency has not presented any argument or evidence tending to
contradict our previous decision’s finding on this point.

As in our previous decision, we strongly advise Complainant to cooperate with the Agency’s
investigation pertaining to the issue of compensatory damages. Further, we remind Complainant
that his failure to do so could result in a denial of his request for compensatory damages.

After reviewing the previous decision and the entire record, the Commission finds that the
Agency’s 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. 0120162271 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 from our previous decision
as set forth below.

ORDER
The Agency is ordered to take the following remedial action:
Within sixty (60) days from the date this decision is issued, the Agency shall conduct a
supplemental investigation to determine whether Complainant is entitled to compensatory
damages incurred as a result of the Agency's discriminatory action from November 2009 until
Complainant's termination in June 2010. The Agency shall allow Complainant to present evidence
in support of his compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No.
01922369 (Jan 5. 1993). Complainant shall cooperate with the Agency in this regard. The Agency
shall issue a final decision addressing the issue of compensatory damages no later than 60 days
after the Agency's receipt of all information. The Agency shall submit a copy of the final decision
to the Compliance Officer as referenced in the paragraph entitled “Implementation of the
Commission's Decision.”
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of any benefits due
Complainant, including evidence that the corrective action has been implemented.

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
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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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. Filing a civil action will terminate the administrative processing of your
complaint.

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

October 26, 2018
Date