[Redacted], Brent S., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Missile Defense Agency), Agency.

Equal Employment Opportunity Commission

May 11, 2022

Appeal No. 2021004640 (E.E.O.C. May. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brent S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Missile Defense Agency), Agency. Request No. 2022001712 Appeal No. 2021004640 Agency No. 2021-MDA-00007 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Brent S. v. Dep’t of Def., EEOC Appeal No. 2021004640 (Jan. 18, 2022). 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, a NH-03 General Engineer at Redstone Arsenal in Alabama, filed a formal EEO complaint alleging that he was subjected to discrimination on the bases of race (African American) and sex (male) when: a. On February 9, 2021, he received a lower than expected contribution score of 75 on his performance evaluation for Fiscal Year 2020 (FY20); b. From January 2017 through January 2021, he received performance evaluations based, in part, on his performance of the duties of the Scenario Design 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. 2022001712 2 Certification (SDC) Lead, yet, his Overall Contribution Scores were significantly unequal to those of his colleagues (C1 and C2) who performed the duties of the SDC Lead; and c. From April 2016 through October 2020, the Agency violated the Lilly Ledbetter Fair Pay Act of 2009, when Complainant, an NH-III (GS-12 equivalent), performed the duties of the SDC Lead without a grade or pay increase, and was evaluated for his performance of SDC Lead duties as a level III, even though C1 and C2, who held the SDC Lead position immediately before and after this time frame, respectively, did so at NH-IV (GS-14/15 equivalent), which allowed C1 and C2 to receive higher compensation and performance awards for performing the same duties as Complainant. The Agency dismissed the complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). In the appellate decision, the Commission affirmed the dismissal decision. In his request for reconsideration, Complainant expresses his disagreement with the previous decision and reiterates arguments previously made on appeal. The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (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. Complainant has not done so here. Complainant has not presented any persuasive evidence to support reconsideration of the Commission's decision. 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. 2021004640 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. 2022001712 3 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 11, 2022 Date