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

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2021001499 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lowell H.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Request No. 2021003454 Appeal No. 2021001499 Hearing No. 541-2019-00148X Agency No. DeCA-00234-2018 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Lowell H. v. Dep’t of Def., EEOC Appeal No. 2021001499 (Apr. 29, 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). Complainant, a Retail Coverage Merchandiser, worked for Acosta Military Sales (Acosta), an Agency contractor, and was assigned to the Agency's Fort Carson Commissary in Colorado. On September 6, 2018, Complainant filed a formal EEO complaint alleging that the Agency subjected him to reprisal for prior protected EEO activity when: 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. 2021003454 2 a. On July 18, 2018, Complainant was reassigned from the Fort Carson Commissary to the Peterson Air Force Base Commissary; b. On July 16, 2018, Complainant sent an email to his [Acosta] Regional Manager, who failed to respond; c. In April 2018, Complainant applied for a promotion [with Acosta]. He was not selected. In July 2018, the Regional Manager informed Complainant that he was not selected due to complaints received from Agency management; and d. In November 2017, Complainant’s [Acosta] supervisor advised him that his peers were alleging his work ethic was declining. She advised Complainant that he needed to put in more effort. The Agency dismissed the complaint for failure to state a claim finding that Complainant was not an Agency employee, but a contractor. Complainant appealed the decision to the Commission. In Lowell H. v. Dep't of Def., EEOC Appeal No. 2019000979 (May 3, 2019), the Commission vacated the Agency’s decision and remanded the matter for a supplemental investigation in order to “gather additional facts on the Agency’s control or right to control Complainant's employment.” Following the supplemental investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter held a “targeted hearing” and thereafter issued a decision granting the Agency's motion to dismiss for lack of standing. The AJ determined that Complainant was not an Agency employee and lacked standing to use the federal EEO complaint process. The Agency issued a final order fully implementing the AJ's decision. In the appellate decision, the Commission affirmed the Agency’s final order. In his request for reconsideration, Complainant expresses his disagreement with the previous decision and reiterates arguments previously made and considered on appeal. 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), 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. Complainant has not presented any persuasive evidence to support reconsideration of the Commission's decision. 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. 2021001499 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021003454 3 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 September 21, 2021 Date