Andres M.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 16, 2018

0520180283 (E.E.O.C. Aug. 16, 2018)

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

Andres M.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Request No. 0520180283

Appeal No. 0120180505

Agency No. ARIMCOMHQ17AUG02773

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Andres M. v. Dep’t of the Army, EEOC Appeal No.
0120180505 (Feb. 13, 2018). 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).

On September 28, 2017, Complainant filed a formal complaint alleging that the Agency
subjected him to reprisal for prior protected EEO activity when he was denied for seven years
access to evidence withheld by the Agency regarding his post bar and security clearance action.
Complainant alleged that these withholdings have denied him due process and injured his
income and reputation.

On October 20, 2017, the Agency dismissed the complaint pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim and for stating the same claim in a prior EEO
complaint. The Agency noted that Complainant was removed from federal employment in

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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October 2012. In addition, the Agency noted that the complaint alleged discrimination with
respect to Complainant's Freedom of Information Act (FOIA) request and was outside of the
purview of Title VII.

Complainant appealed and, in Andres M. v. Dep’t of the Army, EEOC Appeal No. 0120180505
(Feb. 13, 2018), the Commission affirmed the Agency’s dismissal. Therein, the Commission
agreed that this matter concerned the Agency’s alleged failure to provide documents in response
to Complainant’s FOIA request and was therefore outside the Commission’s jurisdiction.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and reiterates arguments previously raised on appeal. The Commission emphasizes 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).
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 presented no evidence demonstrating that the Commission erred in
finding that it had no jurisdiction over his complaint which alleged dissatisfaction with the
Agency’s response to his FOIA requests. As such, Complainant has not put forth any persuasive
arguments to support granting the 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. 0120180505 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.

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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

August 16, 2018
Date