0520160144
04-15-2016
Felton A.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felton A.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520160144
Appeal No. 0120123268
Hearing No. 480-2007-00511X
Agency No. 07322530025
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120123268 (September 1, 2015). 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).
At the time of events giving rise to the underlying complaint, Complainant worked as an Electrician at the Agency's Naval Shipyard and Intermediate Facility located in Pearl Harbor, Hawaii. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), age (54), and reprisal when:
(1) he was not selected for temporary promotion to the position of Electrician Supervisor, on or about April 13, 2006;
(2) he was denied nuclear training on or after February 20, 2006;
(3) he was not allowed to attend a ship systems training course in or about November 21, 2006;
(4) he was not selected for the position of Electrician Supervisor I, WS-2805-10, in the Electrical Electronics and Calibration Shop (Code 950), on or about September 19, 2006;
(5) he was not selected for Electrician Supervisor I, WS-2805-10, in or about January 2007;
(6) he was not referred for consideration to the position of Quality Assurance Specialist, GS-1910-12, in the Quality Assurance (QA) Department (Code 950) on or about January 10, 2007;
(7) he was not referred for selection for the position of Electronics Technician, GS-0856-11, on or about January 10, 2007;
(8) he was not selected for one of two positions as Electrician Leader, WL-2805-10, in the Electrical Electronics and Calibration Shop (Code 950) on or about January 10, 2007;
(9) he was not referred for consideration for the position of Electrician, WG-2805-10, in the Temporary Services Shop (Code 970) on or about March 29, 2007; and
(10) he was not detailed to the position of Shipboard Electrical Systems Tester, WG-2801-12, in the Electrical Electronics and Calibration Shop (Code 950) on or about March 29, 2007.
Our prior appellate decision affirmed the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision. Therein the AJ granted the Agency's motion for summary judgment on issues 1,3,4,5,6,7,9, and 10. Following a hearing on claims 2 and 8, the AJ found that the Agency retaliated against Complainant with respect to claim 2. The AJ concluded that Complainant failed to prove discrimination or retaliation with respect to all other issues.
In his request for reconsideration, Complainant expresses his disagreement with the previous decision. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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. 0120123268 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
Within one-hundred and twenty (120) days from the date this decision becomes final, the Agency is ORDERED to take the following remedial action to the extent it has not yet done so:
1. The Agency shall calculate and pay Complainant the "special nuclear pay" it paid to similarly situated employees who worked on nuclear ship and submarines for the years 2004, 2005 and 2006. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits (if any) due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
2. The Agency shall pay Complainant $7,500 in compensatory damages;
3. The Agency shall provide training on retaliation for management employees at the Naval Shipyard and Intermediate Maintenance Facility located in Pearl Harbor, Hawaii. The training shall be conducted by a qualified trainer familiar with EEO law. The training should include education regarding the fact that the employment discrimination laws protect former employees from retaliatory employment references; and
4. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary' action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
POSTING ORDER (G0914)
The Agency is ordered to post at its Pearl Harbor Naval Shipyard and Intermediate Maintenance Facility facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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. 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 15, 2016
__________________
Date
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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