[Redacted], Garry H., 1 Complainant,v.James E. McPherson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 12, 2021

Appeal No. 2020003952 (E.E.O.C. Jan. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Garry H.,1 Complainant, v. James E. McPherson, Acting Secretary, Department of the Navy, Agency. Request No. 2021000055 Appeal No. 2020003952 Agency No. 20-62381-01694 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Garry H. v. Dep’t of the Navy, EEOC Appeal No. 2020003952 (Sept. 30, 2020). 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). In the underlying complaint, Complainant, a Wiper for the Agency's Military Sealift Command - Atlantic based out of Norfolk, Virginia, alleged that he was subjected to discrimination and a hostile work environment based on age, disability (perceived), and reprisal (prior protected EEO activity) when: (a) from approximately April 1, 2020, through April 13, 2020, while confined onboard the ship, Complainant saw Dock Engineer bring a case of cigarettes onto the ship that morning. Complainant alleged that the ship Captain had his driver go get SIM cards for some of the men that morning, excluding Complainant. 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. 2021000055 2 The Captain took $18 for the purchase of a SIM card and provided a $12 SIM card back to Complainant, which left Complainant wondering what happened to the remaining six dollars; (b) from approximately March 30, 2020 through April 13, 2020, Complainant left the ship in the afternoon to get supplies from the Exchange. When he returned to the ship, the Captain was not happy and put him in quarantine for 14 days. Dock Workers and Dock Engineers, however, came on and off the ship freely. Other Military Sealift Command (MSC) ships personnel docked there were also able to go to the Exchange freely; (c) from approximately March 20, 2020 through March 30, 2020, Complainant was confined to the ship for over 10 days without any way to obtain personal supplies. In contrast, other non-MSC ships personnel on the base were permitted to obtain supplies from the Exchange. He was not made aware of the need for supplies prior to being confined to the ship and his complaints were ignored. The Agency dismissed the complaint for failure to state a claim and for untimely EEO Counselor contact. Our previous decision reversed the Agency’s dismissal of the complaint and remanded the matter for further processing. We first concluded that Complainant initiated EEO counselor contact in a timely manner. In addition, we found that a fair reading of the instant complaint demonstrated a broad claim of harassment comprised of a series of sufficiently severe or pervasive actions as well as several discrete acts, including a January 11, 2020 Letter of Caution and a March 30, 2020 Memorandum re “Restriction of Movement Order and Placement on Weather/Safety Administrative Leave” for two weeks. We concluded that such allegations concern a harm or loss to a term, condition, or privilege of employment and were sufficient to render Complainant an “aggrieved” employee. Therefore, we found that the Agency’s dismissal of the complaint for failure to state a claim was improper. Complainant filed the instant request for reconsideration without submitting any arguments or contentions; thus, it is unclear what Complainant seeks to address by his request for reconsideration. Accordingly, 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. 2020003952 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 (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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. 2021000055 3 As provided in the statement entitled “Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021000055 4 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 January 12, 2021 Date