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

Equal Employment Opportunity Commission

Aug 31, 2020

Appeal No. 0120171641 (E.E.O.C. Aug. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Travis H.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Request No. 2020001863 Appeal No. 0120171641 Agency No. P7-16-0053 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120171641 (Nov. 26, 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). The record reflects the following chronology of events. During the period at issue, Complaint worked as a Contract Administrator, GS-1102-11, at the Agency’s Central Region facility in Dallas, Texas. On May 17, 2016 Complainant filed a formal EEO complaint alleging that the Agency discriminated against hm on the bases of disability (sleep apnea, anxiety, depression, ad Crohn’s disease) and in reprisal for prior protected EEO activity when: 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. 20200018632 1. Between August 2013 and October 31, 2014, S1 prevented Complainant from obtaining a reasonable accommodation;2 2. On December 30, 2014, S1 indicated that Complainant needed to be more dependable in his time and attendance: 3. On December 31, 2015, S1 rated Complainant as fully successful on his annual appraisal; 4. On February 16, 2016, he learned that S1 did not select him for the GS-11012-12 Contract Administrator position advertised under Vacancy Announcement SWH815EHAP78662771501675; 5. On May 16, 2016, S2 denied his reasonable accommodation request; 6. Beginning in September 2014, he was subjected to a hostile work environment when: a. On September 9, 2014, S1 counseled Complainant regarding his late arrivals; b. In September 2014, S1 threatened to take away his maxi-flex schedule; c. On June 1, 2015, S3 dissuaded him from filing an EEO complaint; d. In June 2015, S1 began to micromanage and monitor Complainant more; and e. Between February 2, 2016 and March 2016, S2 requested additional medical information regarding Complainant’s reasonable accommodation request. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision, finding no discrimination. Complainant filed an appeal with the Commission. In our initial decision, we found that Complainant failed to establish, by a preponderance of evidence, that he was subjected to unlawful discrimination. Complainant filed a request for reconsideration. Complainant reiterates many of his arguments previously raised below. Specifically, Complainant reasserts that he was denied a reasonable accommodation. In response, the Agency requests that we deny Complainant’s request. The Agency asserts that Complainant failed to establish, by a preponderance of the evidence, that he was subjected to unlawful discrimination. 2 S1 retired in January 2016, and the EEO Investigator was unable to reach S1, so S1 did not participate in the investigation of Complainant’s EEO complaint. 20200018633 Upon review of the record, we find that OFO’s initial decision properly found that Complainant failed to establish, by a preponderance of the evidence, that he was subjected to unlawful discrimination. We remind complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Aug. 5, 2015), Chapter 9. We further note that Complainant requested a final decision (rather than a hearing before an EEOC AJ); thus, we do not have the benefit of an AJ’s credibility determinations after a hearing or for an AJ to oversee further development of the record. 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. 0120171641 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. 20200018634 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 August 31, 2020 Date