U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Camie B.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Request No. 0520170133 Appeal No. 0120162689 Agency No. ARBENNING16APR01544 DECISION ON REQUEST FOR RECONSIDERATION The Agency requested reconsideration of the decision in EEOC Appeal No. 0120162689 (November 23, 2016). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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). For the following reason, the Agency's request is DENIED. This matter initially came before the Commission after the Agency dismissed Complainant's underlying EEO complaint as untimely filed. On appeal, the Commission reversed and remanded the Agency's dismissal. In pertinent part, the Commission found that, because Complainant experienced a traumatic event, i.e., the death of her father, the day before her EEO complaint had to be filed, and because the delay was relatively brief, it was appropriate to exercise its discretion and excuse the late filing. On reconsideration, the Agency argues that the Commission's decision was not consistent with prior Commission precedent and therefore the Commission's decision constituted a clearly erroneous interpretation of law; and that its procedural dismissal should be reconsidered and a finding issued in its favor. The record shows that Complainant informed the Agency of her father's death and provided a copy of his death certificate before the Agency issued its dismissal. The Agency's argument is that in two prior cases the Commission did not extend the filing period for filing an appeal after the death of a loved one resulted in an untimely filing2 or when an employee was dealing with serious health issues involving his wife.3 In both cases, the Agency maintains that the Commission did not find the employees established that they could not have filed their complaints in a timely manner. Complainant, according to the Agency, did not even offer a contention that she was incapacitated by her father's death; much less provide corroboration for such a statement. The Agency stated that Complainant "[c]ontends that the fact that her father died on the last day before her complaint was due, by itself, should extend her filing period for two weeks." Complainant, among other things, requests that the Agency's request be denied. The Agency is reminded 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. We find that the Agency has not met the criteria for reconsideration. Simply citing two decisions that were issued 10 years apart where the Commission reached a different conclusion does not establish that the Commission clearly erred in the instant case when it exercised its discretion to extend the filing period. Moreover, our prior decision noted the uncertainty regarding whether Complainant had been represented by an attorney prior to filing her complaint. Like the previous decision, we find that had she been so represented, the Agency should have sent the notice of right to file to the attorney, rather than Complainant. The Agency did not address this issue in its request. 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. 0120162689 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 (E0610) The Agency is ordered to process the remanded complaint (as described earlier in this decision) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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). 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 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 _3/6/17_________________ 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. 2 Bradford v. Air Force, EEOC Appeal No. 01A24456 (Dec. 2, 2003). 3 Complainant v. DHS, EEOC Appeal No. 0120132375 (Dec. 18, 2013). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0520170133 2 0520170133