[Redacted], Tena C., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (The Joint Chiefs of Staff), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal Nos. 2022001480, 2022002491, 2022003148 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tena C.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (The Joint Chiefs of Staff), Agency. Request Nos. 2022004046, 2022004047, 2022004048 Appeal Nos. 2022001480, 2022002491, 2022003148 Agency Nos. 2022-WHSJCS-013, 2022-WHSJCS-027, 2022-WHSJCS-044 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its consolidated decision in Tena C. v. Dep’t of Def., EEOC Appeal Nos. 2022001480, 2022002491, 2022003148 (July 21, 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 Training Specialist for the Joint Staff Training Program (JSTP) within the Actions Division of the Agency’s Directorate of Management at the Pentagon in Arlington, Virginia, filed three EEO complaints alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), and in 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. 2022004046, et al. 2 Complaint 1: Agency Case No. 2022-WHSJCS-013, EEOC Appeal No. 2022001480 1. On September 10, 2021, the JSTP Chief blamed her for a programmatic/training failure; 2. On September 13, 2021, the JSTP Chief accused her of providing incorrect advice to a trainee; 3. On October 13, 2021, the JSTP Chief instructed her to leave the training room and then falsely reported to the Contracting Officer Representative (COR), that Complainant left for the day; 4. On October 14, 2021, she was referred to the Defense Counterintelligence Security Agency (DCSA) for a background re-investigation; and 5. On October 20, 2021, she was detained by Pentagon Police and falsely accused of having classified information in her purse; Complaint 2: Agency Case No. 2022-WHSJCS-027, EEOC Appeal No. 2022002491 1. On January 18, 2022, she was referred to DCSA for a security clearance background investigation; 2. On February 22, 2022, she became aware her name was removed from the Directorate of Management, Actions Division, organization chart; 3. On February 23, 2022, her Trusted Associate Sponsorship System (TASS) application was revoked, which resulted in the termination of her government credentials; and Complaint 3: Agency Case No. 2022-WHSJCS-044, EEOC Appeal No. 2022003148 1. On February 24, 2022, the Secretary of Defense, failed to intervene on the denial of her Common Access Card (CAC) Revocation Appeal Request. The Agency issued final decisions dismissing each complaint for failure to state a claim because Complainant was not an Agency employee and therefore lacked standing. Complainant filed appeals of each decision. The Commission consolidated the appeals and issued a single appellate decision affirming the Agency’s dismissal decisions. In her request for reconsideration, Complainant expresses her disagreement with the previous decision and appears to both reiterate arguments previously made on appeal and make new arguments. 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. In addition, to the extent that she raises new arguments, they do not establish that the previous 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. Thus, we conclude 2022004046, et al. 3 that 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 Nos. 2022004046, 2022004047, 2022004048 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 January 26, 2023 Date