EEOC Appeal 2020000867

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilbert R., 1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Intelligence Agency (DIA)),
Agency.
Request No. 2020000867
Appeal No. 0120181829
Hearing No. 570-2014-00505X
Agency No. DIA-2012-00096
DECISION ON REQUEST FOR RECONSIDERATION
On November 2, 2019, Complainant timely requested that the Equal Employment Opportunity
Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120181829
(September 30, 2019). 29 C.F.R. § 1614.405(c).
Complainant worked for DIA’s Office of the Chief Financial Executive. An EEOC Administrative
Judge (AJ) found that in 2012/2013 Complainant was discriminatorily harassed and reassigned to
another position in the same office. The AJ ordered the Agency to offer Complainant placement
into a Deputy Comptroller position outside the above DIA Office and in any other component of
the Department of Defense. On July 19, 2017, the Agency adopted the AJ’s decision.
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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After some time passed without DIA making or securing an offer, Complainant filed an appeal for
non-compliance with the Agency’s order. On September 28, 2017, after the Agency’s final order,
Complainant retired. 2
In the previous decision, the Commission issued an order tracking the Agency’s final order, but
adding that placement in a substantially equivalent position would constitute compliance.
For the first time in this case, in his request to reconsider, Complainant alleges his retirement was
a constructive discharge. He requests that the Commission reopen the previous decision and order
that the Agency pay him back pay with interest and benefits and tax consequences from the date
he retired. He asks that the Commission obligate the Agency to pay front pay continuing to the
date he planned to retire if he was not constructively discharged (on or about September 28, 2022).
He writes his retirement pay would be deducted from back pay and front pay. Complainant also
asks the Commission to enforce the order in its appellate decision.
In opposition to Complainant’s request to reconsider, the Agency argues that Complainant’s
request does not meet the criteria for reconsideration because he did not contend he was
constructively discharged on appeal. DIA argues it has no positions that are substantially
equivalent to the Deputy Controller job outside the Office of the Chief Financial Executive (now
titled Office of Chief Financial Officer). It argues, partly by reference to prior argument, that
despite its continuing efforts it has been unsuccessful in getting another Department of Defense
component to voluntarily place him in a Deputy Controller job or its equivalent, and it does not
have the appointing authority to force this. DIA argues that even though Complainant retired, it
and the Department of Defense will continue to look for a suitable position for him because of his
apparent commitment to come out of retirement and return to federal service.
ANALYSIS AND FINDINGS
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’s request that the Commission reconsider its previous decision and reopen it to add
the relief of back pay, front pay, and connected relief fails to meet the criteria for reconsideration.
Complainant retired after the Agency issued its final order adopting the AJ’s decision, and did not
raise the issue of constructive discharge in this case prior to this request for reconsideration. There
has not been a finding by the Agency or the Commission that Complainant was constructively
discharged.
2 It appears that there was no evidence or mention of Complainant’s retirement in the original
appellate record.

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Because constructive discharge was not before the Commission on appeal, Complainant’s
argument that the previous decision be reconsidered to address it does not meet the first criteria to
reconsider, 	and 	Complainant 	makes 	no 	argument 	addressing 	the 	second 	criteria. 	Also,
Complainant’s request that the Commission enforce its order in EEOC Appeal No. 0120181829 is
not ripe.
The decision in EEOC Appeal No. 0120181829 remains the Commission's decision. There is no
further right of administrative appeal on the decision of the Commission on this request.
ORDER
Within 120 days of the date of this decision, the Agency shall:
Offer Complainant placement into a Deputy Comptroller, or substantially equivalent, position
outside of the DIA Office of the Chief Financial Executive. Complainant may be placed into a
Deputy Comptroller, or substantially equivalent, position within the Department of Defense or any
component of the Department of Defense.
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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.

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Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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
September 3, 2020
Date