Natalie S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Jun 20, 2018

0520180211 (E.E.O.C. Jun. 20, 2018)

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

Natalie S.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Request Nos. 0520180211,
0520180434

Appeal Nos. 0120171016,
0120170347

Hearing No. 430-2015-00293X

Agency Nos. DD-FY15-015,
DD-FY15-026,
DD-FY15-058,
DD-FY16-039

DECISION ON REQUESTS FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal Nos. 0120170347 & 0120171016
(December 21, 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).

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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The record reveals that on December 27, 2014, Complainant filed an EEO complaint wherein she
claimed that the Agency discriminated against her based on her race (African-American), sex
(female), color (brown), age (52), and in reprisal for her prior EEO activity when on October 9,
2014, the Acting Director, Headquarters Human Resource Office, used a restrictive Educator
Career Program (ECP) announcement to cover up de facto segregation for the positions of
Assistant Principal and Principal.

Complainant also filed an EEO complaint on January 21, 2015, wherein she claimed
discrimination on the same bases when on October 17, 2014, she became aware that the
Superintendent of the North Carolina School District did not select her for the vacant Principal
position located at the Bowley Elementary School, North Carolina school district in Fort Bragg,
North Carolina.

Complainant filed an additional EEO complaint on May 7, 2015, wherein she claimed
discrimination on the same bases when on March 25, 2015, she became aware that the Agency had
cancelled the referral list, which Complainant was on, for the vacant Principal position, PRA No.
15JANXHENY164978, located at West Point Middle School, NY/VA/PR school district in West
Point, New York.

Complainant filed a fourth EEO complaint on December 16, 2015, wherein she claimed
discrimination on the bases of her race (African-American), color (brown), and reprisal when on
November 9, 2015, the Agency’s Human Resources Director and Deputy Director shut down the
Educator Career Program (ECP) database due to Complainant having previously exposed
nonselection practices that targeted African-Americans regarding administrator selection
disparities.

The first three complaints were consolidated before an EEOC Administrative Judge (AJ) for one
decision. The AJ, by summary judgment, issued a decision in favor of the Agency. The Agency
subsequently issued a final order implementing the AJ’s finding of no discrimination. With regard
to the final complaint, the Agency dismissed the complaint as a spin-off complaint and also on the
grounds of failure to state a claim. The Agency nonetheless conducted an investigation and
addressed the merits of the claim, determining that no discrimination occurred.

The Commission consolidated Complainant’s appeals of both Agency final decisions. In our
previous decision, we found that no discrimination occurred with regard to all matters at issue. As
to the first complaint, we observed that Complainant claimed that when the October 2014 vacancy
was announced, she was not permitted to make any substantive changes to her application.
However, we stated that candidates who had previously applied were only able to update personal
information or change local preferences and this was applied to everyone, not just African-
American/black employees.

With respect to the second and third complaints, we observed that although the interview panelists
believed that Complainant was a qualified candidate, they found that the respective selectees had
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a different set of skills and experience that rendered them better qualified. We noted that as to the
second complaint, the record contains contemporaneous notes from all of the telephonic
interviews, and they indicate Complainant ranked below the selectee. As for the third complaint,
we stated that although the initial referral list which Complainant was on was cancelled, a new
referral list was created and Complainant was listed there as well. We observed that the selection
panelists indicated that Complainant’s responses on her application were exceptional in some
areas, but uninspiring in others, and that they interviewed better qualified candidates. As for
Complainant’s harassment claim, we found that while Complainant cited various incidents that
she believed to be adverse or disruptive to her, she produced no evidence to establish that race,
color, sex, age, or prior EEO activity was a factor in any of these actions.

With regard to the final complaint, we analyzed the matter on the merits and did not address the
Agency’s procedural dismissal. We noted that Complainant claimed that the ECP database was
used discriminatorily by management to deny advancement opportunities to African-
American/black employees, and eventually was shut down when Complainant alleged its
discriminatory nature. However, we found that the record indicated that for some time the Agency
was slowly migrating away from the ECP database to the OPM job site instead.

In her request for reconsideration, Complainant contends that denying her request will have a
significant impact on the Agency’s policies, practices, and operations regarding the escalation of
mistreatment of the Agency’s African-American/black employees and the African-
American/black students in the Agency’s schools.

In response, the Agency asserts that two arguments presented by Complainant in her request to
reconsider are identical to claims that she raised in her appeal. The Agency asserts that two other
contentions in the request for reconsideration were never previously raised and do not meet the
criteria for consideration as part of a request for reconsideration.

Upon review of the arguments presented by Complainant in her request for reconsideration, we
find that none of these contentions satisfy the criteria of a request for reconsideration. 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.

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 Nos. 0120170347 & 0120171016 remains the
Commission’s decision. There is no further right of administrative appeal on the decision of the
Commission on this request.
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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

June 20, 2018
Date