Herb F.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Jul 24, 2019

2019003362 (E.E.O.C. Jul. 24, 2019)

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

Herb F.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Request No. 2019003362

Appeal No. 0120172240

Agency No. 54201600134

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172240 (March 8, 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).

During the relevant time, Complainant worked as a Skilled Fisherman assigned to several of the
Agency’s ships based in the Marine Operations Center in Newport, Oregon. Believing that his
supervisor subjected him to a hostile work environment, Complainant filed a formal EEO
complaint based on sex (male), age (over 40), and reprisal for prior protected EEO activity.
Following an investigation, Complainant requested a final decision from the Agency. In its May
15, 2017 decision, the Agency found no discrimination. Complainant appealed the decision to
the Commission.

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.
2019003362

2
In the prior decision, the Commission found that Complainant failed to establish that the alleged
incidents occurred as described or were discriminatory. See Complainant v. Dep’t of Commerce
(NOAA), EEOC Appeal No. 0120172240 (March 8, 2019). With respect to an appraisal, the
decision found the supervisor based it upon feedback provided by the officers who supervised
Complainant. See id. As for having to go over his supervisor’s head to get paid, the evidence
indicated technical issues with the system that also affected other employees. See id. Finally,
regarding the remarks by his supervisor (claiming they had a previous personal relationship and
calling him a “racist sexist bigot”), she denied the incidents occurred and Complainant failed to
present any corroborating evidence. See id. In sum, the Commission found that Complainant
failed to show that the supervisor’s actions were motivated by discrimination animus towards
Complainant’s sex, age or prior EEO activity. See id. Complainant now seeks reconsideration of
our decision.

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. Aug. 5, 2015),
at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20,
2007). We find that Complainant is simply attempting to raise arguments and evidence which
were previously, or could have been, raised on appeal.

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. 0120172240 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.
2019003362

3
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

July 24, 2019
Date