[Redacted], Majorie D., 1 Complainant,v.Barbara M. Barrett, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Sep 15, 2020

Appeal No. 2019004018 (E.E.O.C. Sep. 15, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Majorie D.,1 Complainant, v. Barbara M. Barrett, Secretary, Department of the Air Force, Agency. Request No. 2020002581 Appeal No. 2019004018 Hearing No. 410-2018-00407X Agency No. 9R1M1741122 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019004018 (January 7, 2020). 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). We note the following pertinent facts from our previous decision, Complainant was employed by the Agency as a Supervisory Logistics Management Specialist, NH-0346-03, at the Agency’s Life Cycle Management Center located at Robbins Air Force Base in Georgia. On December 21, 2017, Complainant filed an EEO complaint alleging discrimination and harassment based on race, sex, color, age, and reprisal for prior protected EEO activity when: 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. 2020002581 2 1. On July 17, 2017, she received a derogatory write-up in the form of a Memorandum for Record (MFR), and on July 24, 2017, she received the same MFR, also dated July 17, 2017, indicating her refusal to sign the original MFR. 2. On October 3, 2017, she received a Notice of Decision to Suspend for one day without pay. 3. On June 1, 2018, she received a Notice of Proposed Suspension for five days without pay. 4. On June 29, 2018, she received a Notice of Decision to Suspend for five days without pay. Complainant requested an administrative hearing after the Agency completed its investigation of her complaint. The Administrative Judge (AJ) assigned to the case, sua sponte, issued a Notice of Proposed Summary Judgment, and subsequently issued a decision without a hearing finding no discrimination or harassment. The AJ determined that: there were no issues of material fact or credibility to be determined at a hearing; Complainant did not offer any evidence, beyond her own speculation, that the Agency’s nondiscriminatory reasons for its actions were pretext for discrimination; and that because she did not establish that any discriminatory or retaliatory animus motivated the Agency, her claims that the actions constituted harassment also failed. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. In our previous decision, we found that even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor; and that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. In her request for reconsideration, Complainant maintains that the previous decision was clearly erroneous and will have a substantial impact on the on the policies, practices, or operations of the Agency. Apart from indicating that her age is 58, not 68, Complainant did not point to any specific clearly erroneous determination made by our previous decision. Instead, she focused on pointing out numerous perceived errors and deficiencies in the Agency’s investigation, and report of investigation. She also noted alleged violations of the Agency’s policies and the Collective Bargaining Agreement. Finally, she reargued the facts of the case, and submitted numerous documents, many of which were already contained in the record, to support her claim that she was discriminated against by the Agency. The Agency, in response, argues that Complainant’s request does not met the criteria for reconsideration and should be denied. We remind Complainant 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). 2020002581 3 A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, we find she has not met the criteria for reconsideration. 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. 2019004018 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. 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 September 15, 2020 Date