[Redacted], Dolly H., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Dec 22, 2021

Appeal No. 2020003283 (E.E.O.C. Dec. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dolly H.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, (Department of Defense Education Activity), Agency. Request No. 2021004842 Appeal No. 2020003283 Agency No. EU-FY16-153 Hearing No. 570-2018-00395X DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Dolly H. v. Department of Defense, EEOC Appeal No. 2020003283 (August 2, 2021). 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). During the relevant time, Complainant worked for the Agency as a Lead Human Resources Specialist in Sembach, Germany. On November 16, 2016, Complainant filed a formal complaint, claiming discrimination based on race, sex, color, disability and in reprisal for prior protected activity. 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. 3 2021004842 Complainant’s claimed that she was subjected to harassment encompassing a variety of incidents. Complainant further alleged that she learned that an Agency employee was selected for the position of Supervisory Human Resources Specialist, for which Complainant had also applied;2 that she was notified that she must exercise her return rights within 30 days and that her 60-day extension request was denied; and that she was only granted five days of administrative leave for out-processing, when at least ten days were granted to other employees. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, the AJ dismissed the hearing request because Complainant did not respond to the AJ’s Show Cause Order. Thereafter, the Agency issued a final decision finding no discrimination was established as alleged. Complainant appealed. In EEOC Appeal No. 2020003283, we affirmed the Agency’s final decision, finding no discrimination. In the instant request for reconsideration, Complainant, through counsel, submits a brief expressing disagreement with the appellate decision. The arguments raised in the instant request, however, were either raised on appeal from the Agency’s final decision or could have been raised below. We note, in particular, the argument raised in the instant request that the AJ’s dismissal of Complainant’s hearing request likely would not have occurred if Complainant had retained access to her work emails. This argument was expressly addressed, and rejected, in the prior appellate decision. We emphasize 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), Chap. 9 § VI.A (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 No. 2020003283 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. 2 In the prior Commission decision, the Commission noted that the Agency had dismissed this claim “because Complainant did not timely file a formal complaint” on this particular event. Complainant did not contest the dismissal of this claim. 4 2021004842 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 December 22, 2021 Date