[Redacted], Harrison S., 1 Complainant,v.Lloyd J Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Mar 10, 2021

Appeal No. 2020004708 (E.E.O.C. Mar. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harrison S.,1 Complainant, v. Lloyd J Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Request No. 2021001482 Appeal No. 2020004708 Agency No. DCAA-CASE-CE20-006 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Harrison S. v. Dep’t of Def., EEOC Appeal No. 2020004708 (Nov. 18, 2020). 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 at the Agency’s Branch Office in Melbourne, Florida. On February 14, 2020, Complainant contacted an EEO counselor regarding approximately 20 job announcements that he was either not referred for or was referred but not interviewed. Complainant subsequently filed a formal complaint based on age, sex (male), and in reprisal for prior 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. 2021001482 2 protected EEO activity alleging, inter alia, that on September 23, 2019, he was constructively discharged by the Regional Special Program Manager.2 The Agency dismissed the constructive discharge complaint for untimely EEO counselor contact. Complainant appealed, and, in Harrison S., v. U.S. Postal Serv., EEOC Appeal 2020004708 (Nov. 18, 2020), the Commission affirmed the Agency’s final decision dismissing the claim. In the decision, the Commission found that Complainant’s February 14, 2020 EEO Counselor contact, was beyond the 45-day limitation period pursuant to EEOC Regulation 29 C.F.R. § 1614.105(a)(1). Additionally, the Commission found Complainant was actually removed by the Agency on September 23, 2019, when he was issued a removal memorandum for unacceptable performance. Even using the later date of December 17, 2019, when he was issued a SF-50 effectuating his termination, the Commission determined Complainant’s February 14, 2020 EEO counselor contact was still untimely. In his request for reconsideration, Complainant expresses disagreement with the Commission’s previous decision and makes arguments previously raised. The Commission emphasizes that a request for reconsideration is not a second appeal. 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. He has not presented any arguments or evidence that point to a clearly erroneous interpretation of material fact or law. 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. 2020004708 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. 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. 2 The original mixed-case complaint was separated from the non-mixed constructive discharge claim listed above. 2021001482 3 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 March 10, 2021 Date