[Redacted], Anthony Wong, 1 a/k/a Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 5, 2022

Appeal No. 2021000946 (E.E.O.C. Oct. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anthony Wong,1 a/k/a Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Request No. 2022002679 Appeal No. 2021000946 Agency No. AREUVICEN18FEB00401 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021000946 (March 17, 2022). 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). Complainant’s request for reconsideration is DENIED. At the time of events giving rise to this complaint, Complainant worked as a Financial Specialist at the Agency’s Financial Management Support Center in Vincenza, Italy. Starting on March 18, 2018, Complainant filed equal employment opportunity (EEO) complaints alleging that the Agency subjected him to discrimination and harassment based on his age (over 40), color (yellow), disability (perceived mental disability), national origin (Hong Kong), and race (Asian), and in reprisal for prior protected EEO activity, when: 1 The Commission typically uses pseudonyms in lieu of a complainant’s real name when publishing its appellate decisions. In this instance, however, Complainant requested that his real name be used. 2022002679 2 1. from 2016, through July 2018, Complainant did not receive a performance award; 2. on August 17, 2017, due to an office relocation, Complainant was denied a private office; not allowed to hang a bulletin board and clock on the wall; and not allowed to close the window blinds behind him; 3. on January 19, 2018, Complainant was questioned by the Chief of Internal Control about using the bathroom and leaving the bathroom door open; 4. on February 7, 2018, while standing in front of a female coworker’s desk, Complainant’s supervisor (Supervisor) accused Complainant of being too close to her and stated that it could be construed as sexual harassment; 5. on February 15, 2018, Complainant learned that Supervisor disclosed his age and medical condition when Supervisor declared that Complainant was too old to work; very easily forgets things; loses concentration; has a hard time focusing; and is unable to withstand the pressures of working; 6. on July 25, 2017, Complainant was denied an Overseas Extension and forced to enroll in the Priority Placement Program; 7. on March 3, 2016, Complainant was removed from a supervisory position; and 8. on June 1, 2018, Complainant received an annual performance rating of “3.” The Agency dismissed claims 6 and 7 as untimely and investigated the remaining claims. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation, and Complainant requested a final decision from the Agency. In the final decision, the Agency dismissed the performance award claims for 2016 and 2017 (part of claim 1), and claim 8, for untimely contact with an EEO counselor. These claims would only be considered as background for the harassment claim. The Agency concluded that Complainant failed to establish that he was subjected to discrimination or harassment. Complainant appealed the Agency’s final decision. The appellate decision affirmed the Agency’s final decision. As an initial matter, the appellate decision determined that the performance awards for 2016 and 2017 from claim 1, and claims 6, 7, and 8, were properly dismissed as discrete claims for untimely contact. While Complainant asserted that the incident on February 7, 2018 (claim 4), triggered him to recall unpleasant events from the past two and half years, and that he was not aware of discrimination for his performance appraisal claim until July 9, 2018, when he inquired about it with Human Resources, the appellate decision found that Complainant failed to present sufficient evidence to warrant an extension of the applicable timeframes for his EEO contact. 2022002679 3 For claim 1, the appellate decision determined that the Agency articulated a legitimate, nondiscriminatory reason for denying a performance award in 2018. Specifically, Complainant did not receive the highest performance rating (“5” or “Outstanding”) for 2018, but he received a “3” or “Fully Successful.” Complainant provided two comparators, Supervisor and another coworker, to support his claim, but neither were similarly situated to Complainant since Supervisor was Complainant’s supervisor and it was undisputed that the coworker was on a different team. The appellate decision also found that Complainant did not establish that the Agency’s proffered reason was a pretext for discrimination. Regarding the harassment claim, the appellate decision determined that Complainant did not show that any of the complained of conduct was connected to a protected category. For example, for claim 2, Supervisor instructed all employees to refrain from hanging anything on the walls until shelves were installed and requested that the blinds be opened, as much as practicable but not so much that it would interfere with their work. In addition, the office assignments were based on the employees’ grades; nature of their work; and functionality of the work area. Supervisor also denied making the alleged comments in claim 5. While Complainant alleged that Supervisor’s responses were not true, he did not request a hearing and there was no benefit of an Administrative Judge’s credibility determination. The appellate decision concluded that Complainant failed to show that the Agency’s actions were motivated by discrimination as alleged. Complainant filed the instant request for reconsideration, and he filed a brief with additional documents in support of his request. The Agency did not respond to Complainant’s request. ANALYSIS AND FINDINGS 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. As an initial matter, the Commission has consistently held that arguments and/or evidence presented for the first time in a request for reconsideration cannot be considered. See Orval T. v. Dep’t of the Navy, EEOC Request No. 2020004014 (Nov. 19, 2020), citing Sierra P. v. U.S. Postal Serv., EEOC Request No. 0520170104 (Mar. 9, 2017) (“The presentation of new evidence is not one of the stated grounds for reconsideration”). To the extent that the documents filed with Complainant’s request for reconsideration are new evidence, they will not be considered. In his request, Complainant argues that the appellate decision ignored some facts; misinterpreted other facts; “lacked awareness of how systemic violations developed”; and was “inclined toward perpetrators.” Complainant quotes parts of the appellate decision and disputes the findings. However, we find that Complainant largely contends that Supervisor was untruthful, but as noted in the appellate decision, Complainant did not request a hearing and we do not have credibility determinations. 2022002679 4 Complainant also repeats many of his previous arguments, but a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). We find that Complainant did not establish that the appellate decision involved a clearly erroneous interpretation of material fact or law, nor argued that it will have a substantial impact on the policies, practices, or operations of the Agency. As such, we DENY the instant request for reconsideration. The decision in EEOC Appeal No. 2021000946 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. 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 October 5, 2022 Date