Elden R.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 22, 2019

2018000050 (E.E.O.C. Mar. 22, 2019)

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

Elden R.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Request No. 2018000050

Appeal No. 0120172352

Hearing Nos. 531-2014-00268X; 531-2014-00269X

Agency Nos. ARMEADE13JUL02381; ARMEADE13AUG02849

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172352 (August 16, 2018). 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 his underlying complaint, Complainant alleged that the Agency subjected him to unlawful race,
color, and reprisal discrimination when: (1) from March 12, 2012, to August 7, 2013, management
did not place him in the Intelligence Specialist (Operations) position he was hired to perform; (2)
from March 12, 2012, to August 7, 2013, management did not transfer him to Georgia; (3)
beginning in June 2013 and continuing until August 7, 2013, Complainant’s supervisor questioned
him regarding his time and attendance; (4) around December 2012, a management official

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.
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informed Complainant that he should resign in lieu of termination; and (5) on August 7, 2013, the
Agency terminated Complainant’s employment.

At the conclusion of the investigation, Complainant requested a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). The AJ assigned to the case
found that, after viewing the evidence in a light most favorable to Complainant, a decision without
a hearing was appropriate as there were no genuine issues of material fact in dispute. The AJ then
issued a decision finding no discrimination. In its final order, the Agency adopted the AJ’s finding
that Complainant failed to show that he was subjected to unlawful discrimination. On appeal, the
Commission affirmed the Agency’s final order.

In his request for reconsideration, Complainant largely reiterates arguments made, and fully
considered on appeal. Accordingly, 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.
0120172352 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.

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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

March 22, 2019
Date