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

Equal Employment Opportunity Commission

Aug 19, 2021

Appeal No. 2020003153 (E.E.O.C. Aug. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Percy K.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Request No. 2021003156 Appeal No. 2020003153 Hearing No. 520-2019-00208X Agency No. DCAA-Case-NE16-004 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003153 (April 5, 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 as an Auditor, GS-0511-12, at the Agency’s Long Island Branch Office in Central Islip, New York. On April 29, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African American) and reprisal for prior protected EEO activity (participating as a witness in the EEO process for another employee on December 16, 2014). Following several amendments to the formal complaint, the Agency accepted the following claims of discrimination 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. 2021003156 2 1. On May 8, 2015, Complainant’s second-level supervisor (S2) tried to deny Complainant’s request to leave work early on that day. Complainant requested the leave to care for a family member due to a medical situation; 2. On July 22, 2015, S2 accused Complainant of refusing to do work for the Senior Auditor who was serving as Acting Supervisor; 3. On September 10, 2015, S2 verbally denied Complainant’s request to be reassigned to the Garden City Sub Office; 4. On February 16, 2016, S2 called Complainant and pressured him to come into the office to work although his first level supervisor (S1) had approved him to telework at home due to inclement weather; 5. On February 2, 2016, S2 told Complainant in a mid-year review memorandum that he could no longer telework due to his performance having fallen below the “Fully Successful” level; and 6. On February 25, 2016, S1 gave Complainant a mid-year review memorandum and told Complainant that his performance had fallen below the “Fully Successful” level. Complainant also alleged discrimination based solely on reprisal (participating as a witness in the EEO process for another employee on December 16, 2014) when: 7. On or about July 5, 2016, Complainant became aware of information and has documentation to support, that his performance appraisal covering the period of July 1, 2014 to December 27, 2014, which was signed by S2 on February 11, 2015, should have been above “Fully Successful.” Complainant also alleged that this newly acquired information also affected his overall evaluation for the year dated August 11, 2015, which covered the period between December 28, 2014 to June 30, 2015; 8. On October 1, 2016, Complainant’s co-workers were moved to different teams, but he was not moved to a different team and location; and 9. On September 6, 2016, Complainant received a “Minimally Successful” performance appraisal for the period of July 1, 2015 to June 30, 2016. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. During the hearing process, Complainant filed a motion to amend his complaint to include an additional eight claims. On September 18, 2018, the assigned AJ granted Complainant’s motion, in part, and amended the complaint to include the following six claims of discrimination when: 10. On May 5, 2017, S1 rated him as “Minimally Successful” in his annual performance appraisal even though the work he performed was sufficient for the Agency to open a fraud investigation against the contractor he had been auditing; 11. On October 4, 2017, management maintained the performance rating as “Minimally Successful” during his mid-year evaluation; 2021003156 3 12. On October 24, 2014, S2 issued him a “Letter of Reprimand,” because he provided investigative support (to a federal agent and investigative division) instead of performing a voucher review as regular audit work; 13. On November 14, 2017, S1 placed him on a performance improvement plan (PIP). The assignment given was later cancelled on or about April 27, 2018, because the assignment was un-auditable; 14. On June 25, 2018, the Regional Audit Manager instructed S2 not to be involved in the performance plan but on July 17, 2018, S2 defied the directive; and 15. As of August 10, 2018, Complainant remained on a PIP (since November 2017) in retaliation for participating as a witness in an EEO case/process; Thereafter, on March 7, 2019 and May 22, 2019, Complainant filed additional motions to amend his complaint to include two additional claims of discrimination when: 16. On February 14, 2019, a “Notice of Proposed Removal for Unacceptable Performance was issued. Management maintained that Complainant’s performance was unacceptable; and 17. Complainant’s removal was proposed, and he was subsequently removed from his position, effective May 22, 2019. The Agency subsequently submitted a motion for a decision without a hearing, which Complainant timely opposed. The AJ issued a decision by summary judgment in favor of the Agency. Subsequently, the Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. Complainant appealed. In EEOC Appeal No. 2020003153, the Commission concluded that the evidence of record fully supported the AJ’s decision that Complainant’s allegations of discrimination had not been proven. In his request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during his original appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. 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. 2020003153 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021003156 4 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 August 19, 2021 Date