EEOC Appeal 2020001403

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wendy Z.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020001403
Hearing No. 420-2017-00364X
Agency No. ARRESTON15NOV04738
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's final action dated October 22, 2019, fully implementing an EEOC
Administrative Judge’s decision to dismiss her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. 	For the following reasons, the Commission AFFIRMS the Agency’s final
action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Engineer,
GS-0801-14, at the Agency’s Space and Missile Defense Command (SMDC), Future Warfare
Center, located in Redstone Arsenal, Alabama
On January 14, 2016, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of sex (female), disability (perceived disability), 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.

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1. 	She received a satisfactory rating, instead of excellence, on her performance
evaluations covering Complainant’s July 1, 2011 to April 20, 2012 rating (2011-
2012) and January 9, 2013 to June 30, 2013 (2012-2013) rating periods2; and
2. 	When on an unknown date(s) Person A, Person B, and Person C refused to remove
Complainant from the overhire list when Complainant directed their attention to
her belief that two male employees should have been placed on the list before
Complainant.
The Agency accepted claim 1 for processing. However, the Agency dismissed claim 2 pursuant
to 29 C.F.R. § 1614.107(a)(1) for stating the same claims as a claim pending in Agency No.
ARSMDC13SEP003853, Hearing No. EEOC 420-2016-00175X.
At the conclusion of the investigation on the accepted claim, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant requested a hearing, but the Agency filed a motion with the AJ requesting that claim
1 be dismissed for stating the same claim that is pending before or has been decided by the Agency
or Commission. In addition, the Agency requested that claim 1 be dismissed for untimely EEO
Counselor contact.
On September 12, 2019, the AJ granted the Agency’s motion. The Agency subsequently issued a
final action that fully implemented the AJ’s decision. This appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a
complaint that states the same claim that is pending before or has been decided by the agency or
Commission. Upon review, we find the Agency properly dismissed claim 2 for raising the same
claim previously filed in Agency No. ARSMDC13SEP003853, Hearing No. EEOC 420-2016-
00175X.
Additionally, we note that Complainant also raised the claim concerning her 2013 appraisal in
Agency No. ARSMDC13SEP003853, Hearing No. EEOC 420-2016-00175X. Thus, we find this
claim is properly dismissed for raising the same claim previously decided by the agency or
Commission. Further, we note that Complainant appealed the Agency’s final order in that case to
the Commission and in EEOC Appeal No. 201900826 the Commission affirmed the Agency’s
final order fully implementing the AJ’s decision finding no discrimination. There is no indication
Complainant filed a request for reconsideration of the Commission’s prior appellate decision.
2 The rating periods in question normally cover the period of July 1, 2011 to June 30, 2012, and
July 1, 2012 to June 30, 2013. However, Complainant’s rating periods were adjusted because she
spent certain periods on paid administrative leave and suspension during the rating periods at issue.

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EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five days
of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within
forty-five days of the effective date of the action. Regarding both ratings in claim 1, the record
discloses that the alleged discriminatory event occurred in August 2013, but Complainant did not
initiate contact with an EEO Counselor until November 2, 2015, which is beyond the applicable
limitation period. 	On appeal, Complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final action dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that tend to establish 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.
Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within which to submit a brief or
statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her
request and arguments to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013,
or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives
it by mail within five days of the expiration of the applicable filing period. 	See 29 C.F.R. §
1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

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Either party’s request and/or statement or brief in opposition must also include proof of service on
the other party, unless complainant files his or her request via the EEOC Public Portal, in which
case no proof of service is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the request for
reconsideration. 	The Commission will consider requests for reconsideration filed after the
deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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. If you file a request to reconsider
and also file a civil action, 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
October 13, 2020
Date