0520180012
03-09-2018
Kenny C.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kenny C.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense,
Agency.
Request No. 0520180012
Appeal No. 0720150030
Hearing No. 520-2012-00692X
Agency No. 2011PEPA035
DECISION ON REQUEST FOR RECONSIDERATION
Both Complainant and the Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0720150030 (August 29, 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 worked as a Criminal Investigator, GS-12, at the Agency's Pentagon Force Protection Agency in Arlington, Virginia.
Complainant filed an EEO complaint, as later amended, alleging that he was discriminated against based on race (African American) when: (1) he was not selected for an Assistant Special Agent-in-Charge Supervisory Criminal Investigator, GS-13, position; and (2) he was not selected for the GS-13 position of Criminal Investigator (non-supervisory).
Following an investigation, Complainant requested a hearing. The EEOC Administrative Judge (AJ) issued a decision by summary judgment on claim 2, concluding the record was adequately developed and the evidence did not demonstrate that Complainant was subject to discrimination when he was not selected for the Criminal Investigator position. However, following a hearing on claim 1, the AJ found discrimination was established for this non-selection as the Agency failed to articulate legitimate, nondiscriminatory reasons for its actions. The Agency, in its final order, rejected the AJ's finding of discrimination. Our prior decision in EEOC Appeal No. 0720150030 affirmed the AJ's findings, reversing the Agency's decision as to claim 1 and affirming the decision as to claim 2. Both parties have asked us to reconsider this decision.
In its request for reconsideration, the Agency reiterates the same arguments it made on appeal. In sum, the Agency again argues that the AJ mischaracterized evidence in reaching the finding of discrimination, which our previous decision failed to consider or correct. The Agency argues that it clearly articulated a legitimate reason for Complainant's non-selection - that while Complainant was initially selected for the position, that selection was not approved because he had not passed his most recent annual physical fitness test because of his weight. However, our previous decision considered this argument and found that this was a technical requirement that did not appear to be related to the essential functions of the position in question; that Complainant had been promoted in the past without passing the test; and, most significantly, that exceptions were made to other, more important, requirements in order to offer the position to the selectee,2 while this technicality was strictly enforced to deny Complainant the position for which he was originally selected. In sum, while the Agency disagrees with the interpretation and weight given to certain evidence in our previous decision, it has failed to meet the criteria necessary to cause us to reconsider it.
In his request for reconsideration, Complainant seeks additional damages because he states was denied career advancement training and critical supervisory training and experience, and the Agency's long delay in processing the case hindered his professional development. However, these arguments were already considered in our previous decision in fashioning an appropriate remedial award.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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. Neither the Agency nor Complainant has not done so here.
After reviewing the previous decision and the entire record, the Commission finds that the requests fail to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the requests. The decision in EEOC Appeal No. 0720150030 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ordered to take the following remedial actions within one hundred twenty (120) calendar days of the date this decision is issued:
1. The Agency is ordered to pay Complainant $38,750 in compensatory damages.
2. The Agency shall place Complainant in the same or similar position as the Assistant Special Agent-in-Charge Supervisory Criminal Investigator position that he was not selected for in Claim 1, and pay him full back pay, including any and all benefits that Complainant would have received, should he have been selected for this position on June 1, 2011.
3. In the event that S3 remains employed by the Agency, he shall be provided a minimum of eight (8) hours of EEO training with respect to Title VII to ensure that acts of discrimination do not recur. The Agency shall address S3's responsibilities with respect to eliminating discrimination in the workplace and all other supervisory and managerial responsibilities under equal employment law.
4. The Agency shall consider taking appropriate disciplinary action against S3. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth its reason(s) for its decision not to impose discipline. If S3 has left the Agency's employ, the Agency shall furnish documentation of his departure date(s).
POSTING ORDER (G0617)
The Agency is ordered to post at its Pentagon Force Protection Agency facility in Arlington, Virginia copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 (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
March 9, 2018
__________________
Date
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.
2 The selectee's application had initially been scored as below the cut-off point for referral to the selecting official. After Complainant's selection was rejected, the record indicates that the same management official who would not approve Complainant's selection lowered the cut-off point so the selectee could be considered.
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