Kevin Franken, a/k/a Geoffrey P.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionFeb 21, 20192019000394 (E.E.O.C. Feb. 21, 2019) Copy Citation 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. 2019000394 2 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, 2019000394 3 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 2019000394 4 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 2019000394 5 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 Copy with citationCopy as parenthetical citation