Natalie S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.Download PDFEqual Employment Opportunity CommissionJun 20, 20180520180434 (E.E.O.C. Jun. 20, 2018) Copy Citation 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. 0520180211 0520180434 2 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 0520180211 0520180434 3 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. 0520180211 0520180434 4 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 Copy with citationCopy as parenthetical citation