0520150119
03-31-2015
Complainant, v. Ashton B. Carter, Department of Defense (Defense Logistics Agency), Agency.
Complainant,
v.
Ashton B. Carter,
Department of Defense
(Defense Logistics Agency),
Agency.
Request No. 0520150119
Appeal No. 0120140437
Hearing No. 570-2013-00098X
Agency No. DLAF110245
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Complainant v. Department of Defense, EEOC Appeal No. 0120140437 (October 17, 2014). 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).
On September 25, 2013, an Equal Employment Opportunity Commission Administrative Judge (AJ) issued a decision by summary judgment in favor of the Agency. The AJ determined that the investigative record was adequately developed and there were no genuine issues of material fact that required a hearing. The AJ concluded that the evidence of record failed to prove that Complainant was discriminated against on the basis of age (58) and/or in retaliation for prior EEO activity when, in July 2011, he received a letter of warning for unsatisfactory work performance, was placed on a Performance Improvement Plan (PIP), and received an unsatisfactory rating on his quarterly review. The AJ determined that the investigation showed that there were demonstrable performance problems underlying each management action, including prior quarterly ratings documenting poor performance issued by OJT trainers, floor supervisors and Intern Center Coordinators who were not named by Complainant as responsible management officials and were unaware of Complainant's prior EEO activity. The AJ concluded that the record amply demonstrated that Complainant was performing at an unacceptable level. The AJ further determined that Complainant's conclusory assertions about management's motivations, without any real evidence, was insufficient to withstand the Agency's motion for summary judgment.
The Agency issued its final order fully implementing the AJ's decision. Complainant appealed.
Our prior appellate decision dismissed Complainant's appeal because it was untimely filed. The decision noted Complainant's argument that his mother had passed away, but found that he did not adequately establish that he could not have filed his appeal within the 30-day filing period.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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.
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. 0120140437 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 31, 2015
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Fredrick R. Sturdivant
913 Rock Haven Ct
Chester, VA 23836
Stephanie I. Credle
EEO Director
Defense Logistics Agency, EEO Office
8725 John J. Kingman Rd., Suite 1127, DO
Ft. Belvoir, VA 22060-6221
__________________
Date
______________________________
Compliance and Control Division
05 Case Code Sheet - INTERNAL CIRCULATION ONLY (Check All Applicable Codes)
TO: Initials Date Carlton M. Hadden, Director, Office of Federal Operations Robbie Dix III, Director, Appellate Review Program Request Number Appeal Number Agency Number Hearing Number 0520150119 0120140437 DLAF110245 570-2013-00098X The Attached Decision Is Recommended for Approval: Initial Date Reviewed Mary Jean Secoolish, Attorney ***Submission date DT*** Mary Jean Secoolish, Supervisor Catherine McNamara, Division Director Complainant(s): Fredrick R. Sturdivant Agency: DOD (DLA), Decision: Statute(s) Alleged ***Statutes alleged MC*** Basis(es) Alleged ***Bases codes MC*** Issue(s) Alleged ***Issues codes MC*** (Where Discrimination Is Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
Merits Decision - Must include finding by OFO re: discrimination or settlement breach on at least one claim. ? 4A - Merits decision
? 6Q - 01 decision was procedural
? 6R - 01 decision was merits
? 6E - RTR found discrimination
List basis code(s):__________________________
List issue code(s):__________________________
? Compensatory damages (C3) awarded?
? 6F - RTR found no discrimination
? 6S - RTR found settlement breach
? 6T - RTR found no settlement breach
? 6H - RTR affirmed 01 decision
? 6I - RTR reversed 01 decision
? 6J - RTR modified agency (aff'd in part, rev'd in part)
? 6U - Reconsider on own motion
? 4H - RTR affirmed FAD
? 4I - RTR reversed FAD
? 4J - RTR modified agency (NOTE: if aff'd in part and
rev"d in part, then 3L code required if at least one
issue is remanded)
? 3L - RTR remanded PART of agency's merits decision
(NOTE: If breach is basis, use of 3L also requires
4I code; ALSO, do not use with a 6E code) ? 3P - Adverse inference
? 4N - RTR affirmed AJ
? 4O - RTR reversed AJ
? 4P - RTR modified AJ
? 4T - AJ issued Summary Judgment decision
? 4U - RTR affirmed AJ Summary Judgment
? 4V - RTR reversed AJ Summary Judgment
? 3H - RTR denied attorney's fees
? 3I - RTR approved attorney's fees
? 3J - RTR modified attorney's fees
? 3T - Decision on comp. damages - DENIED
? 3U - Decision on comp. damages - APPROVED
? 3V - Decision on comp. damages - MODIFIED
? 3W - Remand to AJ for remedies
? 3Z - Remand to agency for remedies
? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required on 01
Procedural Decision - No finding on RTR re: discrimination or settlement breach. ? 3K - Procedural Decision
? 6Q - 01 decision was procedural
? 6R - 01 decision was merits
? 3M - RTR Reversed and Remanded
? 6H - RTR Affirmed 01 decision
? 6I - RTR Modified 01 decision
? 6J - RTR modified 01 decision (NOTE: if aff'd in part
and rev'd in part, then 3M code is also required) ? 6M - RTR vacated 01 decision (NOTE: 01 decision must
Be merits and ALL issues vacated)
? 6U - Reconsider on own motion
? 4H - RTR affirmed FAD
? 4J - RTR modified agency (NOTE: if aff'd in part and
rev'd in part, then 3L code required if at least one
issue is remanded)
? 4Q - Compliance required
RTR Denied - Require only 3K & 6Q or 6R (above) and 6D & 6N or 6P (below) for a total of 4 codes (and 4Q if applicable). ? 6D - RTR Denied
? 6N - Failure to meet RTR criteria ? 6P - Other procedural defect
? 4Q - Compliance required on 01
Other Closure Codes - Do NOT include 3K or 4A codes ? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure ? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 7N - Civil Action Filed
Revised - (06/16/05)
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Fredrick R. Sturdivant DOD (DLA), 0520150119
OPEN CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
CLOSED CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
CLASS ACTION CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
Mary Jean Secoolish ***Submission date DT***
Attorney Date
2
0520150119
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520150119
4
0520150119