Lupe M.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jan 25, 2018

0520180102 (E.E.O.C. Jan. 25, 2018)

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

Lupe M.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Request No. 0520180102

Appeal No. 0120172879

Hearing No. 430-2015-00056X

Agency No. DLAR-14-0196

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172879 (Oct. 5, 2017). 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 July 10, 2014, Complainant filed an EEO complaint alleging that the Agency subjected him
to discrimination and a hostile work environment on the basis of disability as evidenced by, inter
alia, on June 9, 2014, he learned that his supervisor (S1) had refused to sign his telework
agreement that allowed him to telework as a reasonable accommodation.

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.
0520180102

2
Following an investigation, Complainant requested a hearing. The EEOC Administrative Judge
(AJ) assigned to the matter granted the Agency’s motion and issued a summary judgment
decision finding that Complainant had not been subjected to discrimination. The Agency
subsequently issued a final order fully implementing the AJ’s decision.

Complainant appealed and, in Lupe M. v. Dep’t of Def., EEOC Appeal No. 0120172879 (Oct. 5,
2017), the Commission affirmed the Agency’s final order. Therein, the Commission determined
that Complainant had not been denied reasonable accommodation. The record revealed that S1
simply requested that all teleworking employees, including Complainant, update and submit their
telework agreements to her. Complainant indicated to S1 that he did not have a telework
agreement, and failed to submit the full, required telework forms when S1 requested that he do
so. Nonetheless, the record indicated that Complainant was never denied requested telework and
Complainant did not allege that he was ever denied the ability to telework on any day he
requested. Thus, the Commission found that Complainant failed to show that he was denied
reasonable accommodation. Additionally, the Commission concluded that the alleged conduct
was neither sufficiently severe or pervasive to establish a hostile work environment nor
motivated by discriminatory animus. Accordingly, the Commission found that Complainant was
not subjected to discrimination or a hostile work environment as alleged.

In his request for reconsideration, Complainant expresses his disagreement with the appellate
decision. Complainant contends that S1 failed to properly process his telework agreement by
submitting it to the Disability Program Officer for approval. Complainant, however, did not
raise any arguments regarding the Commission’s finding that the record showed that he was
never denied the opportunity to telework whenever he wished. 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 presented no
evidence to support reconsideration of the Commission’s finding that he was reasonably
accommodated in accordance with the Rehabilitation Act. Further, Complainant presented no
evidence to support reconsideration of the Commission’s determination that the conduct alleged
was either sufficiently severe or pervasive to establish a hostile work environment nor based on
his disability. 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. 0120172879 remains the
Commission’s decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

0520180102

3
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

January 25, 2018
Date