0520170571
12-21-2017
Cheryll K.,1 Complainant, v. Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cheryll K.,1
Complainant,
v.
Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.
Request No. 0520170571
Appeal No. 0120151437
Agency No. ARJACKSON10AUG03441
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120151437 (August 4, 2017). 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 filed an EEO complaint alleging that she was discriminated against based on sex (female) and disability. Among her allegations, she claimed that her supervisor excessively requested medical documentation to support her assertion that she was visually impaired. In its September 4, 2014 final agency decision (FAD), the Agency found that while Complainant was not subjected to harassment or discrimination based on sex or disability, the Agency violated the Rehabilitation Act because the supervisor did make excessive requests for medical documents. The FAD provided Complainant the opportunity to submit documentation regarding her entitlement to compensatory damages and attorney's fees and costs.
When the Agency issued its FAD on September 4, 2014, it mistakenly served it on Attorney #1, who was no longer representing Complainant in the case. The Agency then hand-delivered the FAD to Attorney #2, Complainant's representative at the time, on September 15, 2014, and he signed for the decision. Attorney #2 did not appeal the FAD, and the record shows that he sought additional time from the Agency to submit information on compensatory damages on December 31, 2014. The Agency granted the request and gave Complainant until March 13, 2015 to provide documentation on compensatory damages and attorney's fees. Unfortunately, Attorney #2 died on January 24, 2015.
On March 12, 2015, Attorney #3, Complainant's current attorney, filed an appeal with the Commission from the Agency's September 4, 2014 FAD. The EEOC's previous decision found that Complainant's appeal was untimely filed and dismissed it. The previous decision noted that Attorney #2 had made the decision to submit documentation for compensatory damages rather than file a timely appeal of the FAD.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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.
We note that in his request for reconsideration, Complainant's attorney states they have been working with the Agency to document Complainant's claim for compensatory damages. Once the Agency issues a final decision on either compensatory damages or attorney's fees, as provided for in its September 4, 2014 FAD, Complainant is entitled to appeal those decisions to this Commission if dissatisfied with the results.
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. 0120151437 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
December 21, 2017
__________________
Date
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.
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