Marx H.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 7, 2019

2019000666 (E.E.O.C. Mar. 7, 2019)

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

Marx H.,1
Complainant,

v.

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

Request No. 2019000666

Appeal No. 0120181620

Hearing No. 430-2015-00440X, 430-2016-00072X

Agency No. ARBRAGG14NOV04195; ARUSAR15MAR00984

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Marx H. v. Dep’t of the Army, EEOC Appeal No.
0120181620 (Aug. 31, 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).

On January 6, 2015, and March 5, 2015, Complainant filed complaints alleging that she had been
subjected to discrimination and a hostile work environment based on race (African-American),
color (black), sex (female), and in reprisal for prior EEO activity when: on March 27, 2014, the
Supervisory Human Resources (HR) Specialist and the Chief of Labor and Employment Law
Division intentionally interfered with her supervisory authority when they stopped the processing
of a disciplinary action; on July 30, 2014, Complainant’s second level supervisor (S2) issued her
a notice of proposed suspension without prior counseling or notification and she was required to

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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leave the building under escort and suffered public humiliation; sometime after July 30, 2014, her
disciplinary action was disclosed to individuals who did not have a need to know; on October 9,
2014, Complainant's third level supervisor (S3) issued a decision to suspend Complainant without
pay; and she received a “needs improvement” and rating of 4 on her evaluation.

Following investigation of the complaints, Complainant requested hearings before an EEOC
Administrative Judge (AJ). The AJ assigned to the matter consolidated the complaints and issued
a summary judgment decision finding that Complainant had not been subjected to discrimination,
reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order
fully implementing the AJ’s decision. Complainant appealed and, in Marx H. v. Dep’t of the
Army, EEOC Appeal No. 0120181620 (Aug. 31, 2018), the Commission affirmed the final order.

In her request for reconsideration, Complainant expresses her disagreement with the previous
decision and contends that he was subjected to discrimination. 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 finds that the arguments raised by Complainant in the instant request for
reconsideration were largely raised in her previous appeal, fully considered, and rejected.
Furthermore, Complainant has not shown that the AJ erred in finding that she failed to set forth
sufficient facts showing that there was a genuine issue still in dispute. Despite Complainant’s
arguments otherwise, the Commission finds that the AJ’s decision appropriately indicated that the
record was fully developed; that the AJ considered all of the record evidence in the light most
favorable to Complainant; and that the evidence established that Complainant failed to show that
she was subjected to discrimination as alleged.

In sum, Complainant has not presented any evidence establishing that the Commission erred in
finding that the AJ properly granted summary judgment in this matter. Moreover, the Commission
finds that Complainant has not presented any evidence to support reconsideration of the
Commission’s finding that she failed to show that she was subjected to discrimination, reprisal, or
a hostile work environment.

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. 0120181620 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

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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. 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 07, 2019
Date