Preston B.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 13, 2016

0520160107 (E.E.O.C. Apr. 13, 2016)

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

Preston B.,1
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Request No. 0520160107

Appeal No. 0120141133

Agency No. 13-40080-02326

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0120141133
(October 22, 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).

In the underlying complaint, Complainant alleged that he was subjected to discrimination on
the basis of race (Black) when: Complainant was notified to perform the duties of the vacant
GS-13 position effective March 29, 2013, without additional pay while another employee was
temporarily promoted into the same position with additional pay.

The Agency dismissed Complainant’s complaint for untimely EEO Counselor contact.
Specifically, the Agency noted that Complainant stated he was aware of the other employee
receiving additional pay for the assignment on April 17, 2013, but failed to contact the EEO
Counselor until June 2013, which was beyond the 45-day time limit.

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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In our previous decision, the Commission reversed the Agency’s dismissal of Complainant’s
complaint. The Commission acknowledged that Complainant learned on April 17, 2013, that
another employee was taking over his temporary assignment with additional pay. However,
the Commission noted that Complainant engaged in conversations with management in which
they considered providing him with pay for the time he was acting supervisor. The
Commission noted it was only after Complainant was definitively denied the retroactive pay in
May 2013, that Complainant contacted an EEO Counselor in June 2013.

In its request for reconsideration, the Agency argues that the Commission failed to consider the
brief it submitted in opposition to Complainant’s appeal. The Agency also argues the
Commission erroneously found that management made promises, assurances, and/or other
statements affirming that Complainant would receive GS-13 pay for his past performance as
Acting Branch Head.

At the outset, we note that to the extent that the Commission did not consider the Agency’s
appellate brief in our prior decision, that brief is being considered in the present request for
reconsideration. In its appeal brief, the Agency argued that Complainant believed or
“reasonably suspected” on April 17, 2013, that he had been treated differently from the alleged
comparative. The Agency rejected Complainant’s claim that he did not reasonably suspect
discrimination until the May 3, 2013 conversation when management denied giving him
retroactive pay for the time he spent in the temporary assignment. Specifically, the Agency
noted that Complainant sent an electronic mail message on April 17, 2013, explaining that the
morning he learned the comparative arrived on a 120-day detail with pay, he felt disrespected
and mistreated and stated the action was “like a slap in the face.” The Agency noted
Complainant explained that he felt that his branch had been overlooked “when it comes to
being equal” to the comparative’s branch. The Agency found no merit to Complainant’s
contention that he did not reasonably suspect discrimination until May 3, 2013.

Upon review, we find the Commission’s previous decision properly reversed the Agency’s
dismissal of Complainant’s complaint for untimely EEO Counselor contact. We note that
Complainant learned on April 17, 2013, that the comparative employee was taking over his
temporary assignment with pay. The record reveals that Complainant immediately engaged in
discussions with management regarding whether they would pay him for the temporary
assignment as they agreed to do with the comparative. The Agency does not dispute that at the
May 3, 2013 meeting, Complainant was informed that he would not receive pay for the
temporary detail, unlike the comparative who was receiving pay. We find the previous
decision correctly determined that Complainant did not reasonably suspect discrimination until
May 3, 2013, and that he timely contacted an EEO Counselor on June 14, 2013.

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. 0120141133 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 herein.

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ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. §
1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claims within thirty (30) calendar days of the date this decision becomes final. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

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 (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

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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

April 13, 2016
Date