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

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2020002141 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harlan P.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Request No. 2021002940 Appeal No. 2020002141 Agency No. DON-19-3258A-02741 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020002141 (April 8, 2021). 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 period, Complainant served as a Quality Assurance/Test Director, GS-11, for the Agency’s Naval Shipyard in Norfolk, Virginia. On June 7, 2019, Complainant filed a formal complaint. Complainant claimed that the Operations Oversight Department Director (“A1”) discriminated against him based on age (over 40), race (Black) and in reprisal for engaging in prior EEO activity when he did not offer him an opportunity to interview for the Equipment Specialist position. A1 was the selecting official for the position. The Evaluation Team Lead (“B1”) assisted A1 during the interviews. Complainant had no organizational relationship with either A1 or B1. 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. 2021002940 2 Complainant maintained that he applied for the position but that he did not receive an invitation for an interview even though his resume showed he was more qualified than those applicants who were chosen for interviews. Complainant cited both his education and his nineteen years of experience as a crane Equipment Specialist, as well as his consistently satisfactory job appraisals, as evidence of his qualifications for the position. Furthermore, he stated that he performed all aspects of the job announcement in his current role and that he, therefore, qualified at the GS-12 level. Complainant stated that he did not review the resumes of any of the candidates selected for an interview, but that he knew some of them as co-workers. Complainant stated that he believed A1 decided who to interview based on specific expertise/experience which was not part of the job announcement. Specifically, he said A1 selected candidates for interview if they had backgrounds in rigging and operations even though the job posting did not list those qualifications. Complainant maintained that A1 should not have selected interviewees based on qualifications which were not listed requirements. A1, who was named as a responsible official in a prior EEO complaint filed by Complainant, stated that his only interaction with Complainant was during an interview approximately four years previously. A1 was provided with the referral certificates for the GS-11 and GS-12 vacancies. There was a total of twenty-one individuals listed as qualified, including Complainant, as well as C1, the eventual selectee (White, younger than Complainant). According to A1, he reviewed the resumes of the qualified employees to determine which applicants would receive an invitation to interview. A1 stated that he announced the vacancy because the Agency needed an individual with a rigging/operations background due to the promotion of the team’s previous rigger/operator. He stressed that he only interviewed candidates who had sufficient rigging experience. Among the applicants, nine had between nine and twenty-one years of experience in rigging and operations. C1, the eventual selectee, had 11 years of rigging experience. The remaining candidates were equipment mechanic/inspectors, like Complainant, and lacked rigging and operations experience. A1 stated that he extended invitations for interviews to all nine candidates with rigging and operations experience, but one declined the invitation. A1 emphasized that Complainant had extensive experience maintaining, inspecting, and load testing cranes, but that Complainant lacked the requisite rigging and operations experience. A1 asked B1 to serve on the interview panel with him. B1 had no input as to which candidates would receive interviews but he helped develop the interview questions. According to A1, he and B1 conducted the interviews, independently scored the candidates, and then agreed on the selection. Regarding the announcement, which Complainant felt was deceptive because it did not include an explicit mention of rigging and operations experience, A1 stated that Human Resources (HR) dictated what he could include in the job announcement. He stated that HR required all job analysis competencies be derived from the approved Agency assessment library. A1 stated that he could not modify the language. 2021002940 3 He noted that the job analysis he submitted to HR for the position included several rigging and operation tasks, as well as a specialized experience statement specific to weight handling operations rigging. A1 stated that the hiring representative in HR changed the wording to be more generic. A1 explained that such a change was beyond his control and resulted in the receipt of applications from candidates with both equipment maintenance experience, like Complainant, and candidates with rigging/operations backgrounds. The announcement indicated that the responsibilities include reviewing rigging gear, load test inspection documentation, performing hands-on condition inspections, and reviewing and test documentation of cranes and/or rigging gear. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant requested a final decision from the Agency. The Agency’s subsequent decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. In EEOC Appeal No. 2020002141, the Commission concluded that the evidence of record fully supported the Agency’s decision that Complainant’s allegations of discrimination had not been proven. In his request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during his original appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. 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. 2020002141 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. 2021002940 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 August 9, 2021 Date