Kevin Franken, a/k/a Geoffrey P.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 21, 2019

2019000394 (E.E.O.C. Feb. 21, 2019)

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

Kevin Franken, a/k/a
Geoffrey P.,1
Complainant,

v.

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

Request No. 2019000394

Appeal No. 0120182322

Agency No. ARCEHECSA18MAR01093

DECISION ON REQUEST FOR RECONSIDERATION

Both complainant and the Agency timely requested that the Equal Employment Opportunity
Commission (EEOC or Commission) reconsider its decision in Geoffrey P. v. Dep’t of the Army,
EEOC Appeal No. 0120182322 (September 13, 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).

Complainant, an applicant for a Park Ranger position filed an EEO complaint in which he alleged
that the Agency discriminated against him on the bases of sex, religion, disability, age, and reprisal
in connection with the following incidents:

1. On January 19, 2018, and March 8, 2018, the Agency’s San Francisco District EEO
Manager failed to acknowledge and process Complainant’s EEO complaint;

2. Following his wrongful termination, continuing and ongoing, the Agency had been
“blacklisting” and “gay-listing” Complainant; and

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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3. On April 16, 2018, Complainant received a certified letter from the Sacramento District
EEO Manager, which addressed his “dissatisfaction with the investigation” on another
one his formal complaints.

The Agency dismissed the entire complaint, finding that incidents (1) and (3) concerned improper
“spin-off” allegations regarding the processing of his EEO complaint. The Agency dismissed
incident (2) for failure to state a claim. Complainant appealed, and in our previous decision, we
affirmed the Agency’s dismissal of incidents (1) and (3). With respect to incident (2), however,
we found that Complainant was actually stating a claim of discriminatory non-selection with
respect to two vacancies for Park Ranger positions: Vacancy Nos. WTKC173174920732 and
WTKC173466373533. We reversed the Agency’s dismissal of incident (2) and remanded the
claim for further processing.

Complainant’s Request for Reconsideration

In his request for reconsideration, Complainant argues that in our previous decision, we incorrectly
characterized incident (1) as giving rise to spin-off complaint, contending that because the Agency
never formally processed the complaints arising from the two non-selections, incident (1) could
not be considered a spin-off complaint. Regarding incident (3), Complainant appears to be arguing
the merits of whether the Sacramento District Manager fully addressed his concerns regarding the
investigation of his prior complaint. He maintains that various Agency officials lied or otherwise
gave inaccurate or misleading statements, failed to disclose relevant and material information to
the investigators, and failed to answer questions in a candid, forthright manner.

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. Department of Agriculture, 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.
As to incidents (1) and (3), Complainant has not done so. He has not presented any argument or
evidence tending to establish the existence of either reconsideration criterion. Complainant merely
reargues his appeal on the merits, raising the same contentions that we rejected in our previous
decision.

The Agency’s Request for Reconsideration

In its request for reconsideration, the Agency asserts that since it had already processed the non-
selection claim corresponding to Vacancy Announcement No. WTKC173174920732, compliance
with our previous order would result in duplicative processing. The Agency provided
documentation that the claim pertaining to Vacancy No. WTKC173174920732, which arose in
the Agency’s Los Angeles EEO District had been assigned a number, Agency No.
ARCELA18JAN00269. At the conclusion of counseling on Agency No. ARCELA18JAN00269,
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Complainant had been issued a notice of right to file a formal complaint on February 23, 2018,
and had received the notice on February 28, 2018, as demonstrated by his signature and date of
receipt on the document. According to Agency, Agency No. ARCELA18JAN00269 was closed
at the end of the informal process. However, the Agency’s request does not address the non-
selection claim corresponding to Vacancy Announcement No. WTKC173466373533. We
therefore need not reconsider our previous decision. Rather, the documentation presented by the
Agency regarding Vacancy Announcement No. WTKC173174920732 may be included in its
processing of claim (2) and can be used to demonstrate its compliance with our previous order
therein.

After reviewing the previous decision and the entire record, the Commission finds that the requests
fail to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to
deny the requests. The decision in EEOC Appeal No. 0120182322 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

ORDER (E0618)
To the extent it has not already done so, the Agency is ordered to process the remanded claim
(claim 2) in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to
Complainant that it has received the remanded claim 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.
As provided in the statement entitled “Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
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in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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 (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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. 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
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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

February 21, 2019
Date