Jerrold K.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 4, 2018

0520180466 (E.E.O.C. Oct. 4, 2018)

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

Jerrold K.,1
Complainant,

v.

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

Request No. 0520180466
Appeal No. 0120180980
Agency No. ARUSMA17SEP03514

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180980 (June 14, 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 his underlying complainant, Complainant alleged that the Agency subjected him to unlawful
race and sex discrimination when: (1) from 2015 through September 15, 2017, management
allowed his coworker to harass him; (2) on September 15, 2017, his duty location was changed;
(3) on September 27, 2017, management suspended him for five days; (4) from September 15-
27, 2017, the materials handler supervisor allowed Complainant to be harassed; and (5) from
September 27, 2017, Complainant was placed on administrative leave pending an investigation.
In its final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R. §1614.107(a)(2),
for untimely filing of the formal complaint. On appeal, the Commission affirmed the dismissal,
finding that Complainant received his notice of right to file a formal complaint on November 9,
2017, but did not file his formal complaint until December 1, 2017, which is beyond the 15-day
time limit.

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.
0520180466

2
In his request for reconsideration, Complainant contends that he did not receive the notice of
right to file a formal complaint until November 14, 2017. We find, however, that even assuming
this is true, Complainant’s December 1, 2017, filing is still outside the 15-day limitation period.
Accordingly, 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. 0120180980 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. 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 4, 2018
Date