U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shela O.,1
Complainants,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency,
and
Dr. Mark T. Esper,
Secretary,
Department of the Army.
Request No. 0520180231
Appeal No. 0120130186
Hearing No. 410-2012-00093X
Agency No. 8Z0J11023C
DECISION ON REQUEST FOR RECONSIDERATION
The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120130186 (December 21, 2017).
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).
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.
0520180231
2
At the time of events giving rise to this complaint, Complainant worked as an Education and
Training Technician, SG-1702-05, with the Defense Language Institute English Language Center
at Fort Jackson, South Carolina. On March 18, 2011, Complainant filed her individual formal
complaint against the Agency. Before the Agency finished processing her individual complaint,
Complainant, as putative Class Agent, on October 19, 2011, sought to assert a class-wide
discrimination claim based on sex (female) and in reprisal for prior EEO activity alleging that
females were subjected to a hostile work environment and two males were subjected to reprisal
for supporting them. Specifically, she alleged that from 2007 to 2011, she was subjected to a
hostile work environment, which included numerous adverse actions such as a 10-day
suspension, a proposed 14-day suspension, poor evaluations for 2010, and 2011, extensions of
temporary assignments, and a reassignment.
On August 1, 2012, the EEOC Administrative Judge (AJ) assigned to the case dismissed the
class complaint upon finding that the complaint did not meet the class-certification requirements
set out in 29 C.F.R. § 1614.204(a)(2). On September 4, 2012, the Agency issued its final order
fully implementing the AJ’s dismissal of the class complaint. Complainant appealed. The
Commission found that it was not appropriate for the AJ to deny certification based on the
existing record, as the record required further development. The Commission also noted that
Complainant’s individual complaint was not the subject of a civil action as the Agency
contended. The Commission further joined the Department of the Army as a party to the instant
case and notified the Department of the Army of such. The Commission vacated the Agency’s
final order and remanded the matter for further processing in accordance with the decision and
the order therein. In its request, the Agency, reiterating its arguments previously made, provides
no evidence to grant its request to reconsider the Commission’s prior 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. 0120130186 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth herein.
ORDER
The Department of the Air Force is ORDERED to take the following actions:
1. The Department of the Air Force shall contact the Department of the Army and inform it
of the provisions of this order.
2. The Department of the Air Force is directed to submit a copy of the complaint file to the
Hearings Unit of the Commission's Charlotte District Office within fifteen (15) calendar
days of the date this decision is issued.
3. Thereafter, the Administrative Judge shall allow the parties to engage in precertification
discovery for a period of no less than 90 days. During the discovery period, the AJ shall
require that the parties cooperate to produce affidavits from the class members detailing
0520180231
3
the individual, specific incidents which comprise the class allegations harassment
constituting the overall claim of a hostile work environment.
4. As stated in this decision, if the Administrative Judge finds that the proposed class
satisfies the criteria of numerosity, typicality, and commonality but lacks adequacy of
representation, the AJ shall conditionally certify the class and allow Complainant a
period of 60 days thereafter in which to obtain adequate representation. The AJ shall
subsequently issue a decision on the class complaint in accordance with 29 C.F.R.
§1614.204(d).
5. Should the proposed class complaint ultimately not be certified, the Agency shall resume
the processing of Complainant’s individual complaint.
The Department of the Air Force is further directed to submit a Report of Compliance, as
provided in the statement entitled, “Implementation of the Commission’s Decision.” The report
shall contain supporting documentation verifying that the corrective action has been
implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. If the Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The
Complainant also has the right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement. See 29 C.F.R.
§§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the
right to file a civil action on the underlying complaint in accordance with the paragraph below
entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the
administrative processing of the complaint, including any petition for enforcement, will be
terminated. See 29 C.F.R. § 1614.409.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission.
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4
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. Filing a civil action will terminate the administrative processing of your
complaint.
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
May 11, 2018
Date
