Henry S,1 Complainant,v.Nancy M. Ware, Director, Court Services and Offender Supervision Agency, Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0520180509 (E.E.O.C. Oct. 23, 2018)

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

Henry S,1
Complainant,

v.

Nancy M. Ware,
Director,
Court Services and Offender Supervision Agency,
Agency.

Request No. 0520180509

Appeal No. 0120160957

Agency No. CSOSAEEOF120003

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120160957 (June 6, 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).

During the relevant time, Complainant worked as a Drug Testing Technician at the Agency’s
Community Supervision Services in Washington, D.C. Believing that he was subjected to
harassment and a hostile work environment, based on his sex and in reprisal for prior protected
EEO activity, Complainant filed a formal complaint in December 2006. Following an
investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).
After the Agency failed to comply with two of the AJ’s orders to produce the Report of
Investigation, the AJ sanctioned the Agency with a default judgment in favor of Complainant.

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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Of the six incidents of harassment comprising his formal complaint, the AJ found that
Complainant was only able to establish entitlement to relief for a March 2006 suspension, a
February 2007 suspension, and placement on AWOL on January 4, 2007. While the matter was
pending before the AJ, Complainant also attempted, unsuccessful, to amend his complaint. The
Agency adopted the AJ’s decision. Complainant appealed the matter to the Commission.

In Complainant v. Court Services and Offender Supervision Agency, EEOC Appeal No.
0120103671 (Feb. 8, 2011) the Commission upheld the AJ’s findings and remedies. Both parties
requested reconsideration of the decision. Therein, the Commission addressed Complainant’s
failed attempt to amend his formal complaint to include the claim that a May 9, 2007 arrest, for
unlawful entry at the Agency, was executed in retaliation for his prior EEO activity. See
Complainant v. Court Services and Offender Supervision Agency, EEOC Request No.
0520110349 (Nov. 21, 2011). Specifically, the Commission stated that while there was evidence
showing Complainant contacted an EEO Counselor on June 9, 2007, regarding the incident, there
was no indication he was counseled on it or permitted to amend his formal complaint. See id.
Moreover, neither the Agency nor the AJ either accepted or dismissed the claim. See id. The
Commission concluded that Complainant should have the opportunity to file a complaint, and
was advised to contact an EEO Counselor within fifteen days of receipt of the decision if he
wished to pursue the matter through the EEO process. See id.

Thereafter, on February 9, 2012, Complainant filed a formal complaint claiming his May 9, 2007
arrest was retaliatory. After the matter was investigated, Complainant requested a hearing. The
AJ (hereinafter “AJ-2”) granted the Agency’s motion for summary judgment and issued a
decision finding no discrimination. The AJ found that Complainant failed to meet his burden in
establishing that the Agency contacted the police in reprisal for Complainant’s earlier EEO
activity. The Agency issued a final order adopting the AJ-2’s decision.

Complainant appealed the decision, arguing that the arrest incident should have been part of his
December 2006 complaint, wherein the AJ issued a default judgment. The Commission
disagreed, reasoning that, in EEOC Request No. 0520110349, the error in failing to process the
claim was remedied by providing Complainant to file a new complaint on the matter. See
Complainant v. Court Services and Offender Supervision Agency, EEOC Appeal No.
0120160957 (June 6, 2018). As to Complainant’s argument that he would have been awarded a
remedy if the arrest incident was part of the earlier complaint, the Commission found such
assertion to be speculative. See id.

In the instant request, Complainant merely reiterates his contention that the arrest incident was
raised at the time of the earlier complaint. In support, he submits a copy of August 15, 2007
correspondence, from the Agency’s EEO office to Complainant’s then attorney, which makes
reference to the May 9, 2007 arrest.

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) (rev. Aug. 5, 2015),
at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20,
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2007). We find that the Agency is simply attempting to raise arguments and evidence which
were previously, or could have been, raised on appeal. Moreover, the arrest incident was
ultimately processed as the subsequent February 9, 2012 complaint. To now include it as part of
the December 2006 complaint would be duplicative and unjust.

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. 0120160957 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

October 23, 2018
Date