[Redacted], Man H., 1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Nov 18, 2020

Appeal No. 2019001395 (E.E.O.C. Nov. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Man H.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Commissary Agency), Agency. Request No. 2020005035 Appeal No. 2019001395 Hearing No. 530-2016-00493X Agency No. DeCA-00063-2016 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Man H. v. Dep’t of Defense (Defense Commissary Agency), EEOC Appeal No. 2019001395 (May 10, 2019). 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). At the time of events giving rise to this complaint, Complainant worked as a Grocery Department Manager at the Agency’s Patuxent River Commissary in Patuxent River Naval Station, Maryland. 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. 2020005035 2 On March 21, 2016, Complainant filed a formal EEO complaint claiming that the Agency subjected him to a hostile work environment and discriminated against him based on race and disability when: 1. on numerous occasions between January 2015 and February 2016, Complainant was subjected to screaming, shouting and was belittled in front of subordinates and other managers by the Store Director; 2. in July 2015, Complainant received a Fully Successful performance evaluation for the period February 27, 2015 and June 30, 2015, contrary to the Assistant Manager’s recommendation that he be rated as Excellent; 3. on January 22, 2016, Complainant learned he received a one-day time-off award, but never received any type of performance award for the rating cycle ending June 30, 2015; 4. in October 2015, Complainant was relocated to an office space in the warehouse without a telephone or public address system; 5. on December 10, 2015, Complainant was issued a Letter of Reprimand; 6. in January 2016, the Store Director attempted to place Complainant on a Performance Improvement Plan (“PIP”); 7. in January 2016, the Store Director made a comment about parking in the designated parking area, knowing Complainant was the only employee with a disability placard; 8. on January 11, 2016, Complainant was put on the night shift, resulting in his inability to perform his duties as a Grocery Manager; and the Store Director expected Complainant to return at 5:00 a.m. on January 12, 2016, knowing Complainant's tour of duty ended at 2:30 a.m. that morning; and 9. on February 13, 2016, Complainant learned he was the only manager not recognized (on- the-spot awards) for a special event/project that took place on February 7, 2016. Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a summary judgment without a hearing finding no discrimination. The Agency issued its final order implementing the AJ’s decision. Complainant appealed, and the Commission’s prior decision affirmed the Agency’s decision. In his request, Complainant reiterates arguments he previously made and provides no evidence to warrant granting his 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) (Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). 2020005035 3 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. 2019001395 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 November 18, 2020 Date