0520170376
09-14-2017
Kimbery H.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kimbery H.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Request No. 0520170376
Appeal No. 0120170901
Agency No. ARGORDON13MAY04525
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120170901 (April 25, 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 the previous decision, the Commission affirmed the Agency's final decision dismissing Complainant's formal EEO complaint under the doctrine of laches. We noted that, in an "Information Inquiry Summary" form that Complainant and the EEO Officer signed on May 17, 2013, Complainant stated that the Agency extended the term appointment of other employees but did not extend her term appointment. The EEO Officer wrote on the form that Complainant "has another job offer and wants to decide later if she will file a complaint." The form, which listed May 17, 2013, as the date of initial contact, advised Complainant of the 45-day time limit for initiating the EEO complaint process. On June 24, 2013, the EEO Officer gave Complainant a Memorandum on "Aggrieved Person's Rights and Responsibilities" that explained the EEO process.
In an October 24, 2013, e-mail to Complainant, an EEO Administrative Technician confirmed that Complainant's mediation was scheduled for October 30, 2013. Complainant asserted that she had a scheduling conflict and was told that the mediation would be rescheduled. She also asserted that she contacted the EEO Officer "several weeks later" and "was told they were working on her complaint." Complainant sent the EEO Officer a December 18, 2015, e-mail updating her work contact information, which identified her as an EEO Specialist, Affirmative Employment Program Manager. According to Complainant, she sent a June 16, 2016, e-mail to the EEO Complaints Manager asking about the status of her complaint processing but received no response.
On August 29, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to harassment based on race, sex, and reprisal for prior EEO activity when, among other things, the Agency issued her a May 16, 2013, letter informing her that it would not renew her term of employment and that her employment would end effective May 21, 2013. The Agency informed Complainant that its records did not indicate that she had contacted an EEO official to file an EEO complaint and asked her to provide documentation of her contacts. Complainant's attorney submitted documentation, and the Agency replied that the documentation did not show that Complainant met with an EEO Counselor to have her EEO complaint counseled.
The Agency subsequently dismissed the complaint under the doctrine of laches. The Agency concluded that Complainant did not exercise due diligence in pursuing her complaint and allowed it to languish.
We found that Complainant's May 2013 contact with the Agency's EEO Office did not trigger the Agency's obligation to issue a notice of a right to file a complaint. In addition, noting that Complainant was an EEO Specialist when she contacted the Agency's EEO Officer in December 2015, we found that she more likely than not was familiar with the EEO process. We concluded that laches applied because "culpability and equities weigh against Complainant for causing the delay of over three years before she filed her formal complaint." Accordingly, we affirmed the dismissal of the complaint.
In her request for reconsideration, Complainant, through her attorney, argues that the previous decision involved erroneous interpretations of fact and law. She asserts that the previous decision "is predicated upon a factual finding that Complainant did not initiate EEO counseling in May 2013." She contends that she fulfilled her obligation by requesting counseling within 45 days of the alleged discrimination and that the Agency failed to process her complaint properly. Complainant further contends that laches should not apply because the Agency led her to believe that it was processing her request for EEO counseling when it scheduled mediation in October 2013. According to Complainant, "the representative scheduling the mediation told her that they would get back to her to reschedule and there was no subsequent contac[t]." Finally, she argues that the Agency is more responsible for the alleged mishandling of her complaint than she is and that "a balancing of equities requires that Complainant should not be precluded from processing her complaint."
In response, the Agency argues that the previous decision did not involve an erroneous interpretation of material fact and that the Commission correctly applied laches to this case. The Agency contends that Complainant did not pursue her complaint with due diligence.
We remind Complainant 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) (rev. Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate 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. Complainant has not done so here.
The "Information Inquiry Summary" form that Complainant signed on May 17, 2013, expressly stated that Complainant "wants to decide later if she will file a complaint." Further, even assuming that Complainant's May 2013 contact with the EEO Office constituted the initiation of EEO counseling, we find that the Commission correctly applied laches. There was a two-year gap between the cancellation of the scheduled mediation and Complainant's December 2015 e-mail, which simply updated her contact information, and at least an additional six months before Complainant again contacted the Agency's EEO Office. As we stated in the previous decision, the equities in this case weigh against Complainant.
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. 0120170901 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
__9/14/17________________
Date
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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