Sherita V., Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 10, 2017

0520170208 (E.E.O.C. May. 10, 2017)

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

Sherita V.,
Complainant,

v.

Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.

Request No. 0520170208

Appeal No. 0120170840

Agency No. ARDETRICK16JUL03589

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0120170840
(February 7, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant
a request to reconsider any previous Commission decision 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).

In her underlying complaint, Complainant alleged that the Agency subjected her to
discrimination on the bases of race (African-America), sex (female), color (black), age, and in
reprisal for protected activity when: (1) on August 14, 2015, the Branch Chief of Customer
Service (“Branch Chief”) denied her leave; (2) on May 13, 2016, the Branch Chief yelled at her;
(3) on May 13, 2016, the Branch Chief asked that she be terminated because she filed a
discrimination complaint; (4) on May 16, 2016, the Branch Chief initiated an investigation
against Complainant; and (5) on June 17, 2016, her employment was terminated.

The Agency issued a final decision dated December 9, 2016, dismissing the complaint pursuant
to 29 C.F.R. §1614.107(a)(2), “for failure to state a claim.” In its dismissal decision, the Agency

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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first stated that “[t]his is the [Agency’s] decision ….” However, in a subsequent paragraph, it
stated that based “on my review of the complaint file and conditioned upon a final decision by
the [Agency] Director of EEO or designee I have dismissed your complaint in its entirety ….”
(italics from our prior decision). Complainant appealed the Agency’s decision to the
Commission on January 9, 2017.

On February 7, 2017, the Commission issued a decision on Complainant’s appeal. The
Commission noted the Agency issued a conditional final agency decision and stated that nothing
in the Commission’s regulations provide for conditional final agency decisions. The
Commission did note that appeal rights were provided; albeit to the incorrect address. The
Commission noted that nothing in the record showed that the decision was approved for release
and is the actual final agency decision. Thus, the matter was returned to the Agency.

Additionally, the Commission noted the Agency failed to provide any analysis as to why the
complaint failed to state a claim given that it concerned adverse personnel actions such as the
denial of leave and termination. The complaint was remanded to the Agency for further
processing.

In its February 16, 2017 request for reconsideration, the Agency noted that it did not receive
Complainant’s brief in support of her appeal until February 8, 2017. The Agency stated that
under the Commission’s regulations, it has 30 days from its receipt of Complainant’s appeal
brief to file its response. The Agency noted the Commission’s decision was issued prior to the
expiration of the 30-day timeframe. The Agency requested the case be remanded and asked for
dismissal of the Commission’s prior decision as premature.

In response to the Agency’s motion, Complainant argued that the Commission properly reversed
the Agency’s dismissal because the Agency’s dismissal was facially defective and failed to
provide an analysis as to why the complaint failed to state a claim. Complainant also noted that
the Commission reversed the Agency’s final decision prior to Complainant submitting a brief in
support of her appeal. Complainant stated that clearly the Commission determined sua sponte
the Agency’s dismissal notice was facially deficient.

Subsequently, on February 22, 2017, the Agency filed a supplement request for reconsideration
arguing that its dismissal of the complaint for failure a claim was proper because Complainant
was a contractor and not an Agency employee or joint employee. The Agency stated it would
submit a subsequent brief addressing the standards regarding the contractor versus
employee/joint employee analysis.

Complainant filed a response to the Agency’s supplemental motion for reconsideration.
Complainant argued that just like the initial dismissal notice and the Agency’s first motion for
reconsideration, the Agency did not provide an analysis to support its dismissal decision or its
initial motion for reconsideration. Further, Complainant pointed out the Agency did not provide
an analysis or evidence to support its new argument that Complainant was not an employee or
joint employee.
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On March 8, 2017, the Agency submitted its Agency Brief in Support of Dismissal for Failure to
State a Claim. Therein the Agency contended that Complainant was not an employee or de facto
employee of the Agency, but, instead, was an employee of a contractor to the Agency who did
not meet the definition of a joint employee and was, thus, not entitled to pursue a claim against
the Agency under Title VII. The Agency stated that “[a]lthough this may be the first time the
Agency has addressed the issue of the Complainant’s status as a contract employee who does not
meet the definition of a joint employee, the Complainant cannot credibly claim surprise.” The
Agency noted the issue was first raised and addressed by Complainant’s counsel when
Complainant’s informal complaint was filed. The Agency proceeded to analyze the factors to be
considered in determining whether Complainant was an employee or joint employee of the
Agency.

In response, Complainant filed a Motion to Strike the Agency’s March 8, 2017 brief.
Complainant noted the Agency purportedly filed its brief with the Commission on March 8,
2017, but did not serve the brief on Complainant or her counsel until March 15, 2017.
Complainant requested the Commission strike the Agency’s brief as untimely.

Upon review, the Commission acknowledges that we issued our prior decision before the
requisite time frame ended for the parties to file their briefs. However, in the present case we
find this constitutes harmless error. We find the Agency is bound by the rationale set forth in the
December 9, 2016 decision and that it cannot change the rationale set forth in that decision in an
appellate brief or in its request 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. 0120170840 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER (E1016)

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims
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.

A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.
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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The
Agency’s report must contain supporting documentation, and the Agency must send a copy of all
submissions to the Complainant. 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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. 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 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
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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 10, 2017
Date