[Redacted], Wyatt W., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Jan 5, 2023

Appeal No. 2021002468 (E.E.O.C. Jan. 5, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wyatt W.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Request No. 2022004476 Appeal No. 2021002468 Agency No. DeCA-00046-2019 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021002468 (July 18, 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 period at issue, Complainant worked as a Store Worker at the Agency’s MacDill Air Force Base Commissary in Florida. On February 5, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on his race (African American), sex (male), color (Brown), age (66), and in reprisal for prior protected EEO activity. In a partial acceptance/dismissal letter dated July 2, 2019, the Agency determined that the formal complaint was comprised of the following claims: a) During the period of November 1, 2009 to November 2018, Complainant was rated “successful” on all performance evaluations; 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. 2022004476 2 b) In 2018, [a named Store Manager, M1] denied Complainant the opportunity to speak with the Zone Manager; c) In June 2016, Complainant was reduced from GS-6 to WG-4; d) In January 2016, [named Assistant Grocery Manager, AM1] threatened to write Complainant up and threatened to fire Complainant from his job; e) From November 2015 to January 2016, Complainant was unjustifiably placed on a performance improvement plan (PIP); f) In November 2015, [a named Agency official, A1] denied Complainant an opportunity to attend Quality Assurance Evaluator (QAE) class; g) On or about November 1, 2009, Complainant was charged with the loss of $18,000 worth of merchandise when the refrigerator broke down even though Complainant was not at work at the time; h) In November 2009, [Complainant] was removed from his lead QAE position; and i) On November 3, 2018, Complainant was placed on FMLA for 90 days and returned to work with limited duties. Upon returning to work, Complainant was placed back in the “chill room” and required to perform duties which had a negative impact upon his health. The Agency accepted claim i for investigation, however, dismissed the remainder of the formal complaint on procedural grounds. The Agency issued a final decision regarding claim i, finding that Complainant failed to establish a prima facie case of discrimination. Complainant appealed the Agency’s final decision. In EEOC Appeal No. 2021002468, we affirmed the Agency’s FAD. The appellate decision affirmed the Agency’s dismissal of claims a - h. Further, the prior decision found that the Agency articulated legitimate, nondiscriminatory reasons for claim i for which Complainant failed to establish were pretext for discrimination. The instant request followed. In the instant request for reconsideration, nothing that Complainant has submitted supports a determination that the prior decision affirming the Agency final order was in error. We acknowledge that Complainant argued that EEOC Appeal No. 2021002468 was improperly decided based on the evidence. However, Complainant has not provided that EEOC Appeal No. 2021002468 was clearly erroneous. Rather, it appears that Complainant has submitted arguments in an attempt to reassert his original claims. We note 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). 2022004476 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. 2021002468 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 January 5, 2023 Date