Eva M.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 8, 2018

0520170566 (E.E.O.C. Mar. 8, 2018)

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

Eva M.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Request No. 0520170566

Appeal No. 0120171566

Agency No. 16-33329-02719

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120171566 (July 7, 2017). 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).

In her underlying complaint, Complainant claimed that she was discriminated against on the
bases of her race (African-American), sex (female), disability (carpal tunnel syndrome), age (54),
and in reprisal for her prior EEO activity under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 791 et seq., when:

1. On an unspecified date, Complainant “came to realize and became aware” that she
was not offered an opportunity to serve as the Acting, Director of Public Health.

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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2. On three separate unspecified dates, Complainant notified the Command that she was
experiencing a hostile work environment created by her subordinate employees and
supervisors, and this matter was not addressed.

3. On an unspecified date, Complainant was unable to work at the Dahlgren Industrial
Hygiene Office during a visit because she no longer had a computer at that location,
and she previously had one.

4. On an unspecified date, an administrative position was filled at the Dahlgren
Industrial Hygiene Office instead of Complainant’s request to have a position filled at
the Indian Head Industrial Hygiene Office.

5. On an unspecified date, Complainant became aware that she was “overlooked” and
not registered to attend a conference for Industrial Hygienists.

6. In June or July 2015, Complainant received a job offer from the Agency through
“Pipeline” via email, but after she returned from speaking with the Human Resources
Specialist about the offer, the email had disappeared.

7. Complainant did not receive a satisfactory performance plan, a satisfactory rating, or
a close out appraisal for FY2015 and FY2014.

8. On an unspecified date, Complainant realized efforts to “push” her out of her
Supervisory Industrial Hygienist, GS-0690-13 position at the Naval Health Clinic
Patuxent River when she did not agree to the Agency’s terms in the settlement
agreement, which would have required her to retire at the end of December 2016 or
the first week of January 2017.

9. On January 5, 2016, during his opening statement at the Initial Status Conference, the
Agency Representative stated that the Agency wanted to “depose/dispose”
Complainant.

10. On an unspecified date in February 2016 after returning to work from administrative
leave, Complainant no longer had “By Direction” signing authority.

11. On an unspecified date in February 2016, Complainant received a Letter of
Requirement regarding her use of sick leave.

12. On an unspecified date in February 2016, after returning to work from administrative
leave, all of Complainant’s work computers were not returned to her, and
Complainant no longer had access to certain SharePoint folders/files for the Indian
Head, Dahlgren and Naval Air Facility (NAF) Industrial Hygiene Offices, or her
performance appraisal form.

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13. On an unspecified date in February 2016, after returning to work from administrative
leave, Complainant “realized and became aware” that her supervisory authority was
“degraded” during the Industrial Hygiene trust meeting where she “became the object
of demeaning efforts and jokes at the meeting and other meetings.”

14. On an unspecified date in February 2016, after returning to work from administrative
leave, her supervisory authority was “degraded” when she was “stripped of [her] role
to supervise, connect, clarify, establish instructions, provide work improvements, and
be involved in interviewing new employees and additional staff” as she had done
previously.

15. On an unspecified date in February 2016, Complainant began to experience
“workplace hostilities” after returning to work from administrative leave.

16. On an unspecified date in February 2016, there were changes in work functions such
as having Complainant “under” the Lead Industrial Hygienist in terms of “workflow”
and the routing of industrial hygiene correspondence and survey reports.

17. On May 27, 2016, Complainant left her Supervisory Industrial Hygienist position at
the Naval Health Clinic Patuxent River due to a hostile work environment and
“retaliations happening against” her.

18. During Complainant’s tenure with the Industrial Hygiene Department, ending on May
27, 2016, Complainant did not receive any awards while other employees received
awards.

19. On an unspecified date, a few days after Complainant left her Supervisory Industrial
Hygienist position at the Naval Health Clinic Patuxent River on May 27, 2016,
Complainant became aware that the position had been advertised.

20. On an unspecified date, a few days after Complainant left her Supervisory Industrial
Hygienist position at the Naval Health Clinic Patuxent River on May 27, 2016,
Complainant became aware that her Agency Microsoft Outlook account was
disconnected at the request of management.

21. On July 15, 2016, a non-Agency, military website replaced her personalized profile
picture with a generic avatar of a head of a black dog with a blue collar.

In its final decision, the Agency dismissed all claims of the complaint except for claim (17) on
the grounds of untimely EEO Counselor contact/and or failure to state a claim.

On appeal, the Commission affirmed the Agency’s dismissal of the complaint. The Commission
found that Complainant initiated EEO Counselor contact on May 28, 2016, after most of the
incidents at issue allegedly occurred. The Commission noted as to claim (17) that the Agency
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had subsequently rescinded its acceptance and dismissed this claim on the grounds of untimely
EEO Counselor contact based on ascertaining that Complainant had applied for and accepted a
new position at another agency by February 1, 2016. The Agency reasoned that Complainant’s
actions demonstrated reasonable suspicion of the hostile work environment that she claimed that
she was subjected to at the Agency. The Commission stated that it did not appear that
Complainant was unaware of the 45-day limitation period. The Commission found that
Complainant failed to provide sufficient justification for extending the time limit for contacting
an EEO Counselor. The Commission further found that the matter at issue in claim (21) did not
state a justiciable claim.

In her request for reconsideration, Complainant argues that she contacted EEO representatives on
numerous occasions within the 45-day limitation period by email and by telephone.
Complainant states that her attorney contacted the EEO Office in September 2015 concerning the
continued retaliation. Complainant maintains that other EEO contacts occurred in January,
February, March, May, June, July, August and October 2016. We observe that Complainant has
not presented any specific evidence in support of her position. The Commission emphasizes 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), at 9-18 (Aug. 5,
2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007).
Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision
involved a clearly erroneous interpretation of material fact or law, or 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. 0120171566 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.

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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

March 8, 2018
Date