Melvin S.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Jun 3, 2016

0520160163 (E.E.O.C. Jun. 3, 2016)

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

Melvin S.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Request No. 0520160163

Appeal No. 0120150281

Agency No. DECA-00161-2014

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in EEOC Appeal No.
0120150281 (Feb. 23, 2015). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision 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 August 22, 2014, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination and a hostile work environment in reprisal for prior protected EEO
activity as evidenced by numerous incidents. On September 26, 2014, the Agency issued a
final decision dismissing the complaint for untimely EEO Counselor contact, pursuant to 29
C.F.R. § 1614.107(a)(2). The Agency determined that Complainant’s initial EEO Counselor
contact was beyond the 45-day limitation period regarding all of the alleged incidents.
Complainant appealed and, in Complainant v. Dep’t of Def., EEOC Appeal No. 0120150281,
the Commission reversed the Agency’s dismissal and remanded the matter for further
processing. The Commission was persuaded by Complainant’s assertion that he had no
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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knowledge of the limitation period and found that the Agency failed to provide any
documentation or evidence reflecting Complainant’s actual or constructive knowledge of the
45-day limitation period.

In its request for reconsideration, the Agency submits evidence for the first time that it claims
shows that Complainant had actual or constructive knowledge of the 45-day limitation. The
Agency claims that administrative errors prevented it from previously submitting the evidence
prior to the Commission’s appellate decision. The Commission notes that new evidence
generally will not be accepted in a request for reconsideration. See Houser v. Dep't of
Homeland Sec., EEOC Request No. 0520110548 (Oct. 7, 2011) (citing Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Aug. 5, 2015)).
The Commission may accept new evidence, however, if the parties affirmatively demonstrate it
was not previously available despite the exercise of due diligence. Id.; Est. of Petersen v.
Dep't of Transp., EEOC Appeal No. 07A50016 (Sep. 21, 2005). The Commission reminds
the Agency that a request for reconsideration is not a second appeal to the Commission. EEO
MD-110, at 9-18; see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug.
20, 2007).

Here, the Agency failed to demonstrate that evidence of Complainant’s actual or constructive
knowledge of the 45-day limitation period was not previously available despite the exercise of
due diligence. The Agency had an opportunity to provide these documents to the Commission
on appeal, but did not do so. As such, the Commission declines to consider the documents
submitted by the Agency for the first time in its 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. 0120150281 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request. The Agency shall comply with the Order as set forth below.

ORDER (E0610)

The Agency is ordered to process the remanded complaint in accordance with 29 C.F.R. §
1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claims within thirty (30) calendar days of the date this decision becomes final. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant's request.

A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

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IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

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 submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. 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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.

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

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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 3, 2016
Date