King D.,1 Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 20, 2017

0520170166 (E.E.O.C. Apr. 20, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

King D.,1
Complainant,

v.

Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.

Request No. 0520170166

Appeal No. 0120162282

Hearing No. 551-2015-00096X

Agency No. ARLEWIS14MAY01785

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in EEOC Appeal No.
0120162282 (December 29, 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).

In the underlying complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of race when: (1) he was subjected to a hostile work environment;
(2) he received a poor civilian performance rating on two occasions; and (3) he was charged
absence without leave. Our previous decision reversed the Agency’s dismissal of the formal
complaint, which was dismissed because Complainant raised the same matter in an MSPB
appeal challenging his subsequent removal from employment. We concluded that the Agency
erred because the matter resolved by the MSPB did not involve the same issues as were
presented by the EEO complaint.

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.
0520170166

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In its request to reconsider, the Agency argues that our previous decision misapplies the
doctrine of res judicata, in that the matter presented by the instant complaint was resolved by
the earlier MSPB decision. The Agency’s position is not well taken. The MSPB decision
addressed the question of whether Complainant’s removal was the result of discriminatory
animus. The instant complaint raises causes of action distinct from the removal, i.e. hostile
work environment, discriminatory evaluations, and improper leave charges. For that reason,
res judicata does not bar Complainant from prosecuting this complaint.

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. 0120162282 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

The Agency shall submit to the Hearings Unit of the EEOC's Seattle Field Office the request
for a hearing, as well as the complaint file, within thirty (30) calendar days of the date this
decision is issued. The Agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted to the Hearings Unit of
the Seattle Field Office. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action
in accordance with 29 C.F.R. § 1614.110. The Agency is further directed to submit a report of
compliance, as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying that the corrective
action has been implemented.

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
0520170166

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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

April 20, 2017
Date