Nubia H.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 23, 2020

2020000217 (E.E.O.C. Jan. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nubia H.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Request No. 2020000217 Appeal No. 0120180474 Agency No. ARFTSAM13JUN01879 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120180474 (July 19, 2019). 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 Supply Technician, GS-06, at the Agency’s Brooke Army Medical Center in Fort Sam Houston, Texas. Complainant filed an EEO complaint alleging she was subjected to sexual harassment and a hostile work environment on the bases of sex and age. Following the Agency’s investigation of the claim, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 13, 2017, the AJ issued a decision by summary judgment in favor of the Agency. Our prior appellate decision affirmed the Agency’s final order that concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The decision concluded that the two incidents proffered by Complainant to prove her claim were neither sufficiently severe or pervasive to establish a hostile work environment in violation of Title VII or the ADEA. 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 20200002017 In her request for reconsideration, Complainant asserted her claims were broader than those previously considered. Complainant explained that her allegations were not limited to two instances when co-workers used vulgarity. Complainant accused management of failing address her reporting of offensive misconduct over “years of torment.” In support of her request, Complainant provided the first page of an Agency investigation. The investigative report contained an observation that Complainant had worked in a stressful atmosphere where there was hostility between employees. However, as the AJ noted in her decision, the Agency conducted a formal inquiry pursuant to Army Regulation Article 15-6, and found unsubstantiated any allegations of a discriminatorily hostile environment. Complainant’s request for reconsideration was not a second appeal. EEO MD-110 at Ch. 9, § VII.A. Her arguments concerning a pattern of harassment could have been raised before the EEOC Administrative Judge assigned to her case. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Ch. 5 § IV.D (Aug. 5, 2015). Here, Complainant did not persuade us that the prior appellate decision was clearly erroneous in fact or law, or substantially impacted Agency policies, practices, or operations. After reviewing the previous decision and the entire record, EEOC finds the request fails to meet the criteria of 29 C.F.R. § 1614.405(c); it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120180474 remains our decision. There is no further right of administrative appeal 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. The court has the sole discretion to grant or deny these types of requests. 3 20200002017 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 January 23, 2020 Date