[Redacted], Adena D., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Aug 15, 2022

Appeal No. 2021003040 (E.E.O.C. Aug. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adena D.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Request No. 2022002632 Appeal No. 2021003040 Hearing No. 451-2014-00001X Agency No. 7A0J13001 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021003040 (March 22, 2022). 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). Complainant was employed by the Agency as a Contract Specialist Intern at Joint Base San Antonio in Texas. On December 10, 2012, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of disability (lower back injury, intervertebral disc disease, and degenerative arthritis) and reprisal for prior EEO activity2 when: 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. 2 The basis of reprisal applies to incidents (3) and (4) only. 2022002632 2 1. between August 13, 2012 and October 24, 2012, management failed to grant Complainant reasonable accommodation or engage in dialogue regarding accommodation of an ergonomic chair; 2. from August 31, 2012 to October 24, 2012, management denied Complainant telework pending an ergonomic chair; 3. on November 6, 2012, management gave Complainant an inaccurate, less than favorable performance review and provided false information in the review; 4. on December 6, 2012, Complainant’s supervisor made derogatory comments to her; and 5. management failed to grant Complainant reasonable accommodation (three weeks of leave without pay), resulting in Complainant’s constructive discharge when she had to resign effective February 22, 2013. Following the investigation, Complainant timely requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ assigned to the case granted the Agency’s motion for summary judgment and issued a decision on July 29, 2020, finding that Complainant was not subjected to discrimination or reprisal as alleged. On September 7, 2020, the Agency “ratified” the AJ’s decision, stating that it neglected to issue a final decision within 40 calendar days as is required by 29 C.F.R. § 1614.110(a). Complainant appeal the matter. Our decision in EEOC Appeal No. 2021003040 affirmed the Agency’s adoption of the AJ’s finding of no discrimination. In her request, Complainant provides no evidence to warrant granting her request. 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 Chap. 9 §VII.A. (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. 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. 2021003040 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2022002632 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 August 15, 2022 Date