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

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022002936 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marybeth C.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Request No. 2022004530 Appeal No. 2022002936 Agency No. ARBELVOIR22NOV00381 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2022002936 (August 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). During the relevant period, Complainant was a former Agency employee who applied for a position as Director at the Agency’s Child and Youth Services Division in Fort Carson, Colorado. On November 6, 2021, Complainant initiated EEO Counselor contact. On February 8, 2022, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on her race and in reprisal for prior protected EEO activity when: 1. On September 22, 2021, Complainant was informed that the Chief of Child and Youth Services, Fort Belvoir, Virginia, had accused Complainant of falsifying her resume by using a colleague as a reference for another employment position; and 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. 2022004530 2 2. On April 28, 2021, a tentative job offer as the Director for the Child and Youth Services Facility at Fort Carson, Colorado, was rescinded due to reference checks and Complainant's self-disclosures. On February 22, 2022, the Agency issued a final decision dismissing the formal complaint for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant initiated EEO counselor contact on November 6, 2021, which it found was beyond the 45-day limitation period. Complainant appealed the decision to the Commission. On appeal, Complainant acknowledged that she became aware of the rescinded job offer on April 28, 2021. However, Complainant maintained that she was not aware of the 45-day time limitation. In the appellate decision, the Commission determined that the Agency improperly dismissed the formal complaint for untimely EEO Counselor contact. Marybeth C. v. Dep’t of Army, EEOC Appeal No. 2022002936 (Aug. 22, 2022). The Commission found that the Agency failed to provide documentation to dispute Complainant’s assertion on appeal that she was not aware of the limitation period (e.g., records indicating that Complainant completed EEO training, had filed previous EEO complaints, or was otherwise aware of the 45-day limitation period). On August 22, 2022, the Agency submitted its Request for Reconsideration. In support of the request, the Agency reiterates its argument that Complainant was aware of the 45-day limitation period because she had prior EEO activity. The Agency adds that Complainant completed EEO training. Based on the record, the Commission determines that the matters addressed by the Agency in the instant request could have been raised below. It is the burden of an agency to have evidence or proof in support of its decision. In its earlier decision, the Agency failed to demonstrate that Complainant was aware of the 45-day timeframe limitation. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). On appeal, the Agency failed to satisfy its burden of proof to establish whether Complainant should have been aware of the 45-day limitation period to timely contact an EEO Counselor. Based on the record, the Commission finds that the record on appeal was devoid of evidence that Complainant had actual or constructive knowledge of the applicable time limit. In its request for reconsideration, the Agency attempts to now satisfy its burden. However, 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), Chap. 9 § VI.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. The Agency has not done so here. 2022004530 3 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. 2022002936 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). 2022004530 4 If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 26, 2023 Date