[Redacted], Abe U., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 29, 2021

Appeal No. 2020001333 (E.E.O.C. Mar. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Abe U.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020001333 Hearing Nos. 430-2016-00033X; 430-2017-00136X Agency Nos. DON-15-42158-00109; DON-15-42158-00892 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, with the Equal Employment Opportunity Commission (EEOC or Commission) concerning equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. At the time of events giving rise to these complaints, Complainant was employed by the Agency as a Supervisory Training Instructor, GS-1712-12, assigned to the Production Resources Consolidated Training Department (Code 900T), Norfolk Naval Shipyard (NNSY), in Portsmouth, Virginia. On January 8, 2015, Complainant filed an EEO complaint (Agency No. DON-15-42158-00109) alleging that the Agency subjected him to discrimination and a hostile work environment on the basis of his race (African-American) when: 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. 2020001333 2 1. From January 2013 to September 2014, Complainant was allowed to follow a path of constructing a model for over one year until he was told by the Supervisory Deputy Project Superintendent that it was never the intent or plan of the NNSY Reactor Service to follow the model; 2. From January 2013 to September 2014, Managers in Codes 2370, 300N4 and 930R showed bias when supporting required training Complainant conducted; 3. From January 2013 to September 2014, Managers in Codes 2370, 300N4 and 930R held meetings to discuss training for Reactor Servicing and did not invite Complainant to the meetings; 4. From January 2013 to September 2014, Managers in Codes 2370, 300N4 and 930R failed to ensure Complainant had the appropriate number of instructors to execute his assigned mission; 5. On February 15, 2013, Complainant was told that he was not the right man for the job and that they chose the wrong person; 6. On February 23, 2013, Complainant was told that he was not going to work out in Reactor Services because he was not a team player and he would not bend; 7. In early May 2013, Complainant was not allowed to conduct training during scheduled training dates and times, which caused non-compliance issues; 8. In August 2013, Complainant’s training plan was changed, which caused him to be unable to qualify his instructors in a timely manner; 9. In early December 2013, the Engineering Drapes Course of instruction was not approved in a timely manner, which delayed Complainant from achieving his goals; 10. In early February/March 2014, Complainant’s training plan was changed without him being notified, which restricted Complainant’s ability to train his staff; 11. In early June 2014, the Supervisory Deputy Project Superintendent refused to request additional instructors, which impacted the Nuclear Refueling Training Program; 12. On September 11, 2014, the Supervisory Assistant Production Refueling Manager lied in a written statement he provided to his immediate supervisor; 13. On September 26, 2014, Complainant was removed from his position of Supervisory Instructor in Reactor Services and was reassigned to Building 510R2; and 2020001333 3 14. On September 30, 2014, two pre-action investigations were initiated concerning Complainant’s performance and conduct. On April 26, 2016, Complainant filed a second EEO complaint (Agency No. DON-15-42158- 00892) alleging he was subjected to discrimination by the Agency on the bases of his race (African-American) and in reprisal for his prior protected EEO activity when: 1. On December 15, 2015, Complainant became aware that he had not been selected for a temporary promotion to the position of Nuclear Training Manager, GS-1712-13; and 2. On June 21, 2016, Complainant was not selected for the position of Supervisory Training Instructor, GS-1712-13. After its investigations into the complaints, the Agency provided Complainant with copies of the reports of investigation and notices of right to request hearings before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing as to each complaint. The AJ held a hearing on Agency No. DON- 15-42158-00109 on March 27-28, 2019, and a limited hearing on Agency No. DON-15-42158- 00892 on March 28, 2019. The AJ subsequently issued a consolidated decision concerning both complaints. The AJ found that Complainant was not subjected to discrimination or reprisal as alleged. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant was not discriminated or retaliated against by the Agency as alleged. The Agency’s final action is AFFIRMED. 2020001333 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish 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. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2020001333 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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. If you file a request to reconsider and also file a civil action, 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 March 29, 2021 Date