Kenny M.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 14, 2018

0520180191 (E.E.O.C. Jun. 14, 2018)

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

Kenny M.,1
Complainant,

v.

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

Request No. 0520180191

Appeal No. 0120172329

Agency No. ARRAD17FEB00339

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Kenny M. v. Dep’t of the Army, EEOC Appeal No.
0120172329 (Dec. 12, 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).

On April 18, 2017, Complainant filed a formal EEO complaint alleging that the Agency
subjected him to discrimination based on race (African-American) when on December 8, 2016,
he learned from the Agency’s Director of Civilian Personnel Advisory Center that his temporary
appointment as a Heavy Mobile Equipment Mechanic, WG-5803-10, was not extended effective
June 25, 2016, due to an Official Written Reprimand that inappropriately remained on his
records.

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.
0520180191

2
On May 1, 2017, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for
untimely EEO Counselor contact. The Agency reasoned that the alleged discriminatory event
occurred on June 25, 2016, when Complainant’s temporary appointment expired. Complainant
did not initiate contact with an EEO Counselor until January 25, 2017, which was beyond the 45-
day limitation period. As a result, the Agency dismissed the complaint for untimely EEO
Counselor contact. Complainant appealed and, in Kenny M. v. Dep’t of the Army, EEOC
Appeal No. 0120172329 (Dec. 12, 2017), the Commission affirmed the Agency’s dismissal.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and reiterates arguments previously raised on appeal. 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. Complainant has not done so
here. Complainant has presented no evidence to support reconsideration of the Commission’s
finding that he failed to timely contact an EEO counselor. As such, Complainant has not put
forth any persuasive arguments to support granting the request for reconsideration.

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. 0120172329 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.
0520180191

3
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

June 14, 2018
Date