Zachery V.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

May 25, 2018

0520180139 (E.E.O.C. May. 25, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Zachery V.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Request No. 0520180139

Appeal No. 0120170231

Agency No. AFB5A0J16002

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Zachery V. v. Dep’t of the Air Force, EEOC Appeal No.
0120170231 (Oct. 31, 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).

In April 2016, Complainant was removed as a probationary employee. On April 8, 2016,
Complainant filed an appeal regarding the removal with the Merit Systems Protection Board
(MSPB). The MSPB dismissed the appeal for lack of jurisdiction. On May 6, 2016,
Complainant contacted an EEO Counselor alleging that the Agency subjected him to
discrimination on the bases of race (Caucasian), sex (male), religion (Jewish-conservative), and
disability when, since 2015, the Agency subjected him to a hostile work environment and failed
to provide reasonable accommodation.

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.
0520180139

2
On August 9, 2016, Complainant and his attorney received notice of his right to file a formal
complaint. The notice informed Complainant and his attorney that he had to file his formal
complaint within 15 calendar days. Complainant did not file a formal complaint by August 24,
2016.

On August 31, 2016, Complainant contacted the Agency advising that he had missed the
deadline because he was stationed in Afghanistan and was not able to check his email due to
internet issues. Complainant further explained that his location was receiving daily rocket
attacks. In addition, Complainant informed the Agency that he had believed that his attorney
was going to file the complaint on his behalf. Complainant’s original attorney left her firm
during the filing period and his case had been transferred to another attorney.

On September 16, 2016, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(2) for Complainant’s untimely filing of the EEO complaint. Complainant
appealed and, in Zachery V. v. Dep’t of the Air Force, EEOC Appeal No. 0120170231 (Oct. 31,
2017), the Commission determined that Complainant had offered an adequate justification to
warrant an extension of the time limit for filing the complaint. The Commission noted that
Complainant filed his complaint immediately after he learned that his attorney had not filed the
complaint on his behalf.

In its request for reconsideration, the Agency reiterates arguments previously made and
considered in the appellate decision. In particular, the Agency contends that Complainant was
responsible for proceeding with his complaint, that Complainant failed to show that his attorney
was prevented from filing a formal complaint, and failed to show that he was unable to file his
complaint through means other than email. Accordingly, the Agency requests that the
Commission grant its request for reconsideration.

The Commission emphasizes that 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), at 9-18 (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. The
Commission is unpersuaded by the Agency’s arguments that Complainant failed to demonstrate
any circumstances that prevented him from timely filing the formal complaint. Furthermore, the
Agency has not shown that the Commission clearly erred in finding that Complainant
demonstrated adequate justification to warrant an extension of the time limit for filing the formal
complaint based on the specific circumstances present.

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. 0120170231 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 below.
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ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.
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. 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.
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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 25, 2018
Date