EEOC Appeal 2020000734

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elda S.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Request No. 2020000734
Appeal No. 0120180151
Hearing No. 430-2014-00030X
Agency No. ARUSAR12NOV04423
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180151 (August 30, 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).
Complainant, a Director, Family Programs, GS-15, employed at the U.S. Army Reserve Command
in Fort Bragg, North Carolina, alleged that the Agency subjected her to discrimination and a hostile
work environment on the bases of sex (female) and national origin (Hispanic) from approximately
June 2010 through November 2012. She alleged the Agency’s harassment was continuous and
provided the following alleged types of incidents as examples:
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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a. 	Management removed her duties; reduced her responsibilities; imposed restrictions on
her managerial discretion; undermined her supervisory authority; set unrealistic
requirements and different standards for her than other employees; scrutinized her
work; and interfered with her ability to perform her duties by delaying hiring actions
and shifting positions and staff;
b. 	Management criticized her; made insulting and demeaning remarks; made statements
insinuating she lacks competency; is uncooperative and is difficult to work with;
threatened discipline; and disclosed information regarding the discipline imposed on
her;
c. 	Management initiated four Army Regulations (AR) 15-6 investigations related to her;
withheld information related to her performance and conduct; failed to inform her of
her work issues; and ignored her assertions regarding performance issues;
d. 	Effective April 24, 2011, her duty station was relocated from Crystal City, Virginia to
Fort Bragg, North Carolina; and
e. 	Effective November 5, 2012, she was suspended without pay for 14 days.2
The Agency accepted the complaint and conducted an investigation, which produced the following
pertinent facts:3
Most of Complainant’s allegations in claim (a) relate to managerial decisions of higher-level
managers, including her first-line supervisor (Supervisor1), a Colonel (COL1) and a Major
General (MG1). Her allegations generally include that they did not support her as the Director;
undermined her supervisory authority; questioned her judgment; reduced her responsibilities;
restricted her managerial discretion; and questioned her role as the primary advisor and subject
matter expert. More specifically, she alleged that they interfered with her hiring and personnel
actions and removed her function to review referral lists and resumes; removed the Warrior Family
Assistance Center and the recovery care coordination functions and counseled her on not executing
those functions any longer; did not consider or process awards at she submitted; and denied her
work travel in July 2010, August 2011, and September 2012. She also alleged that management
gave an Executive Officer/Program Manager (EO/PM) the only access to senior leadership.
2 The formal complaint contained numerous allegations which the Agency summarized as above.
In its January 2, 2013 Notice of Acceptance, Complainant was advised to notify the Agency if the
complaint was not correctly identified. The record does not indicate that she objected to the issues
as stated by the Agency.
3 Additional witnesses were interviewed in the investigation. Their statements have been
considered as part of the record.

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Complainant also alleged she was spoken to or about in ways she felt were harassing, including
when COL1 who asked to know her whereabouts; made offensive remarks about her Hispanic
culture; and made a demeaning remark about her trying to push consolidation, so she can stay
around as a GS-15.
Supervisor1 denied any intentions or actions to alter Complainant’s duties or responsibilities or
give preferential treatment to EO/PM. She also stated there was no intention to usurp or undermine
Complainant’s authority. However, she explained that she had the authority to approve or
disapprove final personnel actions.
COL1 attested that Complainant’s duties, actions, and responsibilities were impacted when she
became Complainant’s supervisor and when management decided to relocate Complainant to Fort
Bragg. She also attested that Complainant resisted being held accountable and explained that MG1
had to approve all temporary travel and some hiring positions were delayed.
MG1 explained that she spoke with Complainant and EO/PM about EO/PM having direct access
to senior leadership and she sent EO/PM to a briefing because she was trying to encourage
Complainant to allow her subordinates to travel, but Complainant disagreed and said she wanted
to do all the traveling. MG1 and Supersvisor1 canceled travel from time to time. She further
explained that when COL1 became Complainant’s supervisor, Complainant did not accept it. MG1
denied making derogatory or demeaning statements about Complainant’s national origin.
Another Major General (MG2) attested that he did not remove or delay Complainant’s hiring
actions and he supported them. He also explained that, due to EO/PM’s location, it would have
been common for EO/PM to interact with him and every such conversation did not equate to his
jumping the chain of command.
With respect to claim (b) Complainant alleged that management subjected her to harassment and
discrimination when they criticized her, counseled her, accused her of providing wrong
information, and did not afford her an opportunity to present facts or information. She alleged
harassment when MG1 said she could not continue to be the subject matter expert and counseled
her for failure to follow directions, pay attention to detail, and share information with staff
members and subordinates. She also alleged management accused her of being incompetent,
argumentative, difficult to work with, disregarding taskers, not taking duties seriously, and failing
to follow directions.
Supervisor1 denied criticizing, insulting, or making demeaning remarks to Complainant.
COL1 acknowledged that she accused Complainant of providing the wrong information. She
explained that when Complainant took a lot of trips, each trip was evaluated to see if the goal of
the visit could be accomplished through other means. She counseled Complainant in January,
February, and December 2010, but did not recall what was the nature of Complainant’s
misconduct. She denied making biased statements about Complainant’s national origin or treating
males more favorably.

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MG1 explained that Complainant was the only one doing all the traveling and wanted to be the
only one to have access to senior leaders. She also attested that Complainant showed a lack of
courtesy and respect, a negative attitude, and a lack of interpersonal skills. She explained that
Complainant was counseled on December 3, 2010 about paying attention to details, following
directions, and sharing information.
With respect to claim (c), the Agency conducted four internal investigations, during the period at
issue. They were conducted on August 13, 2010; September 7, 2011, February 3, 2012, and
September 18, 2012. Complainant attested that she asked why the investigations were conducted,
but she never received an answer. However, she felt discriminated against when all of the
documentation for each investigation was not provided to her. She alleged that, when she requested
the documentation, she was told to pay $3500 which she refused to do.
MG2 stated that he did not believe the investigations were a pattern of harassment and explained
that the investigations concerned problems in the Family Programs Directorate concerning
contractors and how the department was led and managed.
A Brigadier General (BG) explained that he was the appointing officer for two investigations and
indicated that the first and second investigations concerned contractor issues and contracting
improprieties. He explained that, in response to Complainant’s request for copies of the
investigative reports, Complainant was not the subject of these investigations and they were
informal. Therefore, Complainant was not entitled to them.
With respect to claim (d), MG1 and Supervisor1 made the managerial decision to relocate
Complainant. 	Complainant attested that in November or December 2010, she was notified that
she was being reassigned from Fort McPherson, Georgia with duty at Arlington, Virginia to Fort
Bragg, North Carolina, effective April 24, 2011. Complainant alleged that MG discriminated
against her with the intention to cause her hardship, as she was given short notice. She also alleged
MG1 and COL1 made demeaning, offensive remarks about her Hispanic culture and that EO/PM
should have been relocated because he was subordinate to her and was responsible for supporting
the filed.
MG1 was involved in Complainant’s relocation. She attested that she met with various leaders
who unanimously agreed that Complainant’s position would be more effective at Fort Bragg to
provide better focus on the subordinate units and their challenges.
BG explained that the Chief of the Army Reserve directed him to reorganize the staff because they
were geographically dispersed and to consolidate functions in locations that made the most sense.
The moves were accelerated due to a civilian hiring freeze and all senior civilians signed relocation
agreements and mobility agreements.

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With respect to claim (e), Complainant was issued a Notice of Proposed Suspension on August 17,
2012. She was issued a Notice of Decision on Proposed Suspension on for 14 days without pay on
or about October 26, 2012, which provided that, effective November 5, 2012, she was suspected
until November 18, 2012. Complainant alleged that management discriminated against her with
respect to the suspension because they knew she was the target of the investigations, which she
alleged resulted in her suspension.
MG2 attested that the suspension was based upon the findings of the second and third
investigations.
Supervisor1 attested that she was consulted and provided guidance and assistance regarding
Complainant’s suspension. She witnessed a colonel (COL2), the proposing official, issue the
proposed suspension and explained that the suspension was not excessive in comparison to other
disciplinary actions for similar offenses. COL2 explained that there was a lot of information from
multiple sources to support the 14-day suspension, but the suspension was not the most severe
level of disciplinary action.
The CEO (CEO) was the deciding official for the 14-day suspension. He attested that, after he
reviewed recommendations from Complainant’s chain of command, supporting documentation,
Complainant’s response, and the findings of two of the investigations, he determined that the
proposed suspension should be sustained. He explained that the suspension was based on two
investigations concerning contracting irregularities and the command climate of Family Programs.
Based on the record establishing these facts, the Agency found that Complainant failed to show
she was discriminated against as alleged. Complainant appealed to the Commission. We
considered Complainant’s allegations of disparate treatment and found that the Agency articulated
legitimate, non-discriminatory reasons for the alleged incidents. We also found that, with respect
to Complainant’s allegation of harassment, she failed to establish that any of the actions taken by
the Agency were motivated by discriminatory animus and that the incidents, considered together
and taken as a whole, do not rise to the level of a discriminatory hostile workplace. Therefore, we
affirmed the Agency’s finding that Complainant had not been subjected to harassment or disparate
treatment.
Thereafter, Complainant filed the instant request for reconsideration. In so doing, she asserted that
the Commission’s prior decision lacked sufficient facts, analysis, or application of law or legal
principles. She also asserted that the administrative judge failed to exercise her own independent
analysis of the Agency’s motion for a decision without a hearing. She reiterated her contentions
regarding the alleged discrimination and harassment, providing details relating to the alleged
events.

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We find that Complainant's request for reconsideration fails to show that our previous decision
involved a clearly erroneous interpretation of material fact or law in its conclusion that
Complainant failed to establish by a preponderance of the evidence that the Agency subjected her
discrimination or a hostile work environment, or that it would have a substantial impact on the
policies, practices or operations of the Agency.
We remind Complainant 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.
Complainant has not done so here.
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. 0120180151 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.

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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
September 9, 2020
Date