Alfonzo H.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 30, 2020

2020000320 (E.E.O.C. Jan. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alfonzo H.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Request No. 2020000320 Appeal No. 0120181266 Hearing No. 550-2017-00460X Agency No. ARLEWIS16AUG04794 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120181266 (August 8, 2019). 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). In his underlying complaint, Complainant alleged that the Agency subjected him to unlawful age and reprisal discrimination when: (1) on June 29, 2016, he was informed that he was not selected for one of two slots for the position supervisory firefighter (station captain), GS-0081-09, Joint Base Lewis-McChord, Washington, advertised under vacancy announcement number #WTEU162986331665575; (2) on unspecified dates he was not selected for promotion to unspecified positions; (3) on unspecified dates he was subjected to sexual harassment by an unspecified person; (4) the Agency failed to properly process the instant complaint at the informal 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. 2020000320 2 pre-complaint stage when it refused to mutually schedule the alternative dispute resolution he requested and did not provide his designated non-attorney representative copies of all EEO correspondence; and (5) he was issued a proposed letter of suspension dated June 15, 2017 (which was rescinded on June 20, 2017) for improper and unacceptable conduct in the workplace for shouting a remark the Agency labeled as anti-Semitic on April 1, 2017, and on June 16, 2017, he was placed on indefinite administrative leave. The Agency dismissed claims (2)-(4), and following an investigation into claims (1) and (5), Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ assigned to the case affirmed the Agency’s dismissal of claims (2) and (3). The AJ also found that with respect to claim (4), there was no evidence that the EEO process was improper. As to claim (1), the AJ found that, after viewing the evidence in a light most favorable to Complainant, a decision without a hearing was appropriate as there were no genuine issues of material fact in dispute.2 The AJ concluded that Complainant failed to show that the Agency’s articulated reasons for his nonselection were a pretext for unlawful age or reprisal discrimination. The Agency’s final order adopted the AJ’s finding of no discrimination. On appeal, the Commission affirmed the Agency’s final order. In his request for reconsideration, Complainant largely reiterates arguments made, and fully considered below. Accordingly, 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. 0120181266 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. 2 The AJ did not address claim (5). In our decision on appeal, the Commission took administrative notice that on June 4, 2018, the Merit Systems Protection Board (MSPB) issued a decision finding that Complainant was not removed based on reprisal for prior EEO activity. Complainant did not request that this decision be reviewed by the EEOC. 2020000320 3 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 30, 2020 Date