[Redacted], Nancy D., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020000626 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Natalie S.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Request No. 2020002698 Appeal No. 0120180466 Hearing No. 430-2015-00078X Agency No. ARBRAGG13OCT03543 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120180466 (January 22, 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). During the relevant time, Complainant worked as a Strategic Planner/Management Analyst for the Agency’s Directorate of Family, Morale, Welfare and Recreation located in Fort Bragg, North Carolina. Believing that she was subjected to discrimination based on her sex and in reprisal for prior protected EEO activity, Complainant filed a formal EEO complaint on November 7, 2013. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). A hearing was held, and the AJ issued a decision finding no discrimination. 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. 2020002698 2 On October 13, 2017, the Agency issued a decision implementing the AJ’s decision. Complainant appealed the decision to the Commission. On appeal, Complainant argued that the investigation was flawed, the Agency provided inadequate responses during discovery, and engaged in a pattern of delay that was not appropriately sanctioned by the AJ. She reiterated her belief that she was subjected to disparate treatment and harassment based on her sex and prior EEO activity. In the prior decision, the Commission concluded that the AJ did not abuse her discretion during the hearing process. See Complainant v. Dep’t of Army, EEOC Appeal No. 0120180466 (Jan. 22, 2020). For example, we noted that the AJ sanctioned the Agency by not permitting it to call witnesses or submit additional exhibits. See id. In allowing the testimony of two rebuttal witnesses, the AJ acted within her discretion. See id. The parties were previously advised that if rebuttal testimony was necessary, she would allow the Agency the opportunity to specifically identify the need and Complainant the opportunity to reject. See id. Both occurred, and limited testimony was provided by two witnesses. See id. As for the unavailability of two retired witnesses, the record reflected that the AJ ordered the Agency to contact the individuals to see if they would testify. See id. When the AJ determined that the Agency had taken such action, further sanctions were not imposed. The Commission was not persuaded by Complainant that additional sanctions were appropriate. See id. Regarding the merits of the complaint, the Commission found that the AJ’s decision was supported by substantial evidence and properly applied the law. See id. The twenty incidents that comprised the complaint included tangible employment actions which the Commission found to be supported by legitimate, non-discriminatory reasons. See id. As for the non-tangible events, the Commission found there were not sufficiently severe or pervasive to create a hostile work environment. See id. Moreover, Complainant failed to provide evidence that the Agency’s actions were motivated by discriminatory animus. See id. The AJ’s decision finding no discrimination was affirmed. In her request for reconsideration, Complainant reiterates arguments made on appeal and during the hearing. She contends that the Commission made a clearly erroneously interpretation of material fact in concluding that she only offered “bare assertions and beliefs”, and references generally evidence “as more thoroughly enumerated and discussed in the Appellate Brief”. Additionally, she argues that the Agency failed to provide the complete case file on appeal and the Commission erred in relying on a partial record. Complainant again makes only a general assertion and fails to identify specific documents, with the exception of her appellate brief, which she later acknowledges was included in the Commission’s portal. Further, we note that a review of our prior decision clearly reflects consideration of her appellate brief. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989). A request for reconsideration is not merely a form of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). 2020002698 3 Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. USPS, EEOC Request No. 05900769 (September 27, 1990). 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. 0120180466 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. 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 16, 2020 Date