[Redacted], Milford R., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Aug 19, 2021

Appeal No. 2020003394 (E.E.O.C. Aug. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Milford R.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Request No. 2021003086 Appeal No. 2020003394 Hearing No. 570-2018-00112X Agency No. HUD-00125-2016 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Milford R. v. Dep’t of Housing and Urban Development, EEOC Appeal No. 2020003394 (Mar. 31, 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 period at issue, Complainant worked as Network IT Specialist, GS-2211-14, at the Agency’s Office of Enterprise Data Technology Solutions located in Washington, D.C. On November 22, 2016, Complainant filed an EEO complaint, subsequently amended, claiming that the Agency discriminated against him and subjected him to a hostile work environment based on race (African American), sex (male), color (dark skin), and in reprisal for prior protected EEO activity 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. 2021003086 2 1. beginning in December 2014, Complainant was not promoted to a GS-15 as promised; 2. in November 2015, Complainant’s performance appraisal for fiscal year 2015 was changed from Outstanding to Excellent; 3. on August 10, 2016, Complainant was moved from an office to a cubicle; 4. on September 7, 2016, Complainant was informed that he would not be allowed to telework the entire week from September 5 - 9, 2016; 5. between February 21 - 25, 2017, Complainant was informed by several colleagues that his supervisor was permanently taking over some of Complainant’s roles and responsibilities; 6. on March 7, 2017, Complainant was informed that his timecard would not be approved and that his supervisor would adjust his previous timecards to change holiday leave to annual leave dating back to 2015; and 7. on April 5, 2017, Complainant became aware that his supervisor had added new performance goals to his performance standards that were unrealistic and would set him up for failure. On April 16, 2020, an EEOC Administrative Judge (AJ) issued a decision by summary judgment, over Complainant’s objection, in favor of the Agency. The AJ determined that claims 1 and 2 were untimely raised discrete acts, but would be considered as background to Complainant’s hostile work environment claim. The AJ noted that management attempted to reclassify several employees, including Complainant, to a GS-15 position. However, the Bureau of Fiscal Services (BFS) denied these attempts. Additionally, the AJ indicated that the one employee approved by BFS for a GS-15 promotion was an African-American male, and consequently, shared Complainant’s protected classes. The AJ further stated that the record supported that the Agency articulated legitimate non-discriminatory reasons for its actions and Complainant failed to demonstrate that these articulated reasons were pretextual for discrimination.2 2 While the AJ did not address every claim in her decision, the AJ incorporated by reference the Agency’s November 7, 2019 motion for summary judgment which addressed each claim. The Agency explained that the record reflected that (1) BFS, not management, denied reclassifying Complainant’s position to a GS 15; (2) management did not rate Complainant Outstanding in every critical element and Complainant failed to support how he should have received an Outstanding rating instead of Highly Successful; (3) Complainant’s position as a Network Specialist did not entitle him to an office, and consequently he was moved to a cubicle; (4) management was not required to approve Complainant’s telework request during the week of September 5, 2016, because Complainant would have exceeded the three-day telework limitation 2021003086 3 The AJ also noted that the record reflected that Complainant’s supervisor did not take over his responsibilities and duties as alleged, nor did the record reflect that the supervisor’s alleged attempt to take over his responsibilities was based on Complainant’s race, sex, color, or prior protected EEO activity. The AJ further explained that also explained that even if these claims occurred as alleged, Complainant failed to demonstrate that discriminatory animus factored in any of the Agency’s actions to support a hostile work environment claim. On April 21, 2020, the Agency issued a final order adopting the AJ’s finding of no discrimination. Complainant appealed. The decision in EEOC Appeal No. 2020003394 determined that Complainant failed to identify any material facts in dispute. The appellate decision further determined that the AJ correctly concluded that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. In the instant request for reconsideration, Complainant, through counsel, submits statements expressing his disagreement with the appellate decision and reiterates arguments previously made during the original appeal. The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). 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. 2020003394 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. and Complainant’s request did not qualify for an exception to this rule because it occurred before the Safe Track metro surge began on September 15, 2016; (5) management had the authority to tailor two of the five critical elements to align with management’s goals; (6) management initially declined to approve Complainant’s timesheet because it omitted the number of hours Complainant was scheduled to work on a holiday to determine the amount of holiday leave Complainant should receive; and (7) Complainant was temporarily assigned Chair of the Architectural Review Board (ARB Chair), and his supervisor notified staff that he would assume the role of ARB Chair before he became aware of Complainant’s EEO complaint. 2021003086 4 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 August 19, 2021 Date