[Redacted], Marty A., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2021003781 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marty A.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Request No. 2023000144 Appeal No. 2021003781 Agency No. ARRILEY20OCT03219 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021003781 (September 12, 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). BACKGROUND During the period at issue in the underlying complaint, Complainant worked as a Service Order Clerk, GS-0303-05, at Fort Riley in Kansas. On November 16, 2020, Complainant filed an EEO complaint claiming that the Agency discriminated against him on the basis of disability (physical and mental) when (1) on August 7, 2020, the Supervisory Engineering Technician (Supervisor) failed to fully implement his reasonable accommodation request and (2) on October 21, 2020, the Supervisor issued Complainant a memorandum of Termination of Appointment during a trial period, terminating his employment effective the same day. 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. 2023000144 2 The Agency initially dismissed claim 1 pursuant to 29 C.F.R. §1614.107(a)(2) for untimely EEO counselor contact because Complainant had not brought the claim to the attention of an EEO counselor within the 45-day time limit. See Report of Investigation (ROI) at 46-49. The Agency also found that the Agency articulated legitimate, nondiscriminatory reasons for his termination, i.e., that Complainant abused his leave, displayed insufficient candor on at least two occasions, and did not adequately perform his duties, and Complainant did not establish that the Agency’s reasons were a pretext for discrimination. In Appeal No. 2021003781, the appellate decision initially noted that Complainant had not challenged the dismissal of his reasonable accommodation claim for untimeliness and additionally found no grounds to disturb the Agency’s dismissal. The appellate decision also went on to affirm the merits of the Agency’s decision finding that Complainant did not establish that his termination was discriminatory. In his request for reconsideration, Complainant first challenges the Agency’s dismissal of his reasonable accommodation claim as untimely. Complainant then contends that the appellate decision made an erroneous interpretation of material fact or law in concluding that he had not established that the Agency’s reasons were a pretext for discrimination. In response, the Agency contends that Complainant may not now challenge the Agency’s dismissal of his reasonable accommodation claim when he did not do so for the first time on appeal. The Agency also argues that Complainant is only reiterating his arguments made on appeal challenging the merits of the Agency’s decision and that Complainant did not establish any erroneous interpretation of fact or law. ANALYSIS and FINDINGS As an initial matter, we reject Complainant’s challenge to the Agency’s dismissal of his reasonable accommodation as untimely because it is being raised for the first time in his request for reconsideration but was not raised at any point in his appeal. Having failed to challenge the Agency’s dismissal of his accommodation claim in his initial appeal, Complainant cannot now raise the issue for the first time on reconsideration. The Commission has consistently held that arguments raised for the first time on request for reconsideration cannot be considered at this stage of the proceedings. See Guice v. Dep’t of Veterans Affs., EEOC Appeal No. 0520120241 (April 18, 2012); Choates v. Federal Deposit Ins. Corp., EEOC Request No. 05970012 (May 21, 1998). Complainant’s other arguments amount to a reiteration of his arguments made in his initial appeal. We emphasize, however, that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, § VILA (Aug. 5, 2015). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation 2023000144 3 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. CONCLUSION 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. 2021003781 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 March 29, 2023 Date