[Redacted], Ted L., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2022001900 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ted L.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Request No. 2022003809 Appeal No. 2022001900 Agency No. DLAN-21-0220 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2022001900 (June 9, 2022). 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 period at issue, Complainant worked as a Supervisory Supply Technician, GS-2005- 8, at the Agency’s Defense Logistics Agency Distribution facility in Anniston, Alabama. On January 9, 2022, Complainant filed a formal complaint claiming that the Agency discriminated against him based and subjected him to harassment based on race, sex, color, disability, age, and in reprisal for prior protected EEO activity. On February 9, 2022, the Agency issued a final decision. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), finding that the formal complaint was untimely filed. 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. 2022003809 2 The Agency stated that it emailed Complainant and Complainant’s non-legal representative the Notice of Right to File a Formal Complaint (Notice) on December 10, 2021, which was received that same day. The Agency found, however, that Complainant did not file the formal complaint until January 9, 2022, which it found to be beyond the 15-day filing period. Complainant appealed the Agency’s final decision. In EEOC Appeal No. 2022001900, we affirmed the Agency’s final decision. The prior decision noted that the Notice was emailed to Complainant and Complainant’s representative on December 10, 2021. Neither Complainant nor his representative disputed the Agency’s assertion that the emailed notice was also received on December 10, 2021. Therefore, the prior decision held that Complainant had fifteen days, or until December 27, 2021, to timely file his formal complaint. As the record reflects that Complainant did not file his formal complaint until January 9, 2022, the prior decision found that the Agency’s dismissal of the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) was appropriate. Further the prior decision indicated that although Complainant indicated that he had been off from work, he failed provide any medical documentation supporting that he was so incapacitated during the 15-day period to prevent him from filing the complaint. As such, the prior decision affirmed the Agency’s final decision. In the instant request for reconsideration, Complainant restated that his medical condition was the reason for missing the filing deadline. However, Complainant failed to provide any medical documentation to support his statement. Further, nothing that Complainant has submitted supports a determination that the prior decision affirming the Agency’s final order was in error. 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. 2022001900 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. 2022003809 3 “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 October 17, 2022 Date