Frederick A.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Human Resources Activity), Agency.

Equal Employment Opportunity Commission

May 9, 2018

0520180183 (E.E.O.C. May. 9, 2018)

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

Frederick A.,1
Complainant,

v.

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

Request No. 0520180183

Appeal No. 0120162811

Agency No. DCP-13-004

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120162811 (December 5, 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).

In his underlying complaint, Complainant alleged that he was discriminated against on the bases
of race, sex, age, and in reprisal for prior protected EEO activity when: 1) his first line supervisor
denied him an opportunity to attend the Key Leadership Certificate Program; 2) his first line
supervisor failed to provide him with the classification status for the IT Specialist (INFOSEGCS),
GS-2210-14 position description; and 3) his first and second line supervisors lateraled him from
an IT Specialist (INFOSEC), GS-2210-13, position into an IT Specialist (INFOSEC), GS-2210-
14 billet, and promised him a promotion within 90 days.

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.
0520180183

2
At Complainant’s request, the case was assigned to an EEOC Administrative Judge (AJ) for a
hearing. Before a hearing was held, on the Agency’s motion, the AJ dismissed the hearing request
and remanded the matter to the Agency for a final decision. In its final decision, the Agency found
that Complainant had failed to prove discrimination. Complainant appealed to the Commission
but failed to submit any sort of statement on appeal specifying what he regarded as error in the
proceedings below. The Commission affirmed the Agency’s decision, finding that Complainant
failed to prove that the Agency’s explanation for its actions were a pretext for discriminatory
animus or that the allegedly harassing behavior to which Complainant was subjected “occurred
because of his race.”2

In his request for reconsideration, Complainant makes no mention of the merits of the appellate
decision. Instead, he seeks to have the Commission reverse the AJ’s decision to dismiss
Complainant’s hearing request. Complainant argues that the decision to deny Complainant a
hearing should be set aside because Complainant was wrongfully denied the opportunity to oppose
the Agency’s motion to dismiss the hearing request. We will not address an argument of this type
raised for the first time in a request for reconsideration. The Commission’s scope of review on a
request for reconsideration is narrow and is not merely a form of a second appeal. See Lopez v.
Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg v.
United States Postal Service, EEOC Request No. 05900850 (September 7, 1990). This argument
should have raised as an argument in connection with the initial appeal. As noted, Complainant
submitted no brief and made no arguments whatsoever in support of the appeal.

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. 0120162811 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

2 Complainant withdrew the bases of sex, age, and reprisal.
0520180183

3
“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

May 9, 2018
Date