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

Equal Employment Opportunity Commission

Feb 23, 2021

Appeal No. 2021000130 (E.E.O.C. Feb. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Regina L.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021000130 Agency No. DON 20-00167-02085 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 11, 2020, dismissing a formal complaint of unlawful 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. BACKGROUND During the period at issue, Complainant worked as an Engineer, ND-5, at the Agency’s Naval Undersea Warfare Center (NUWC) Division in Newport, Rhode Island. On May 8, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On August 17, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on her sex and in reprisal for prior protected EEO activity. The formal complaint consisted of the following claims: 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. 2021000130 2 a. Whether Complainant was subjected to discrimination based on her sex and in reprisal for prior EEO activity (DON Docket #16-66604-02359) by the Code 60 Department Head (DH), when in the summer of 2018, the Code 60 DH did not provide leadership support for internal funding for Complainant’s work proposal. b. Whether Complainant was subjected to discrimination based on sex and reprisal (DON Docket #16-66604-02359) by Code 15 DH, when, on September 29, 2019, Code 15 DH did not send out an email to Code 15 employees announcing Complainant’s promotion. c. Whether Complainant was subjected to discrimination based on sex and reprisal (DON Docket #16-66604-02359) by her first line supervisor (S1), Code 1511, when: 1. on December 9, 2019, S1 rated Complainant as a “contributor” for her final DEMO review for FY 2019; 2. on April 29, 2020, S1 rated Complainant overall as a “contributor” for her mid-year DEMO review for FY 2020; and 3. on May 21, 2020, S1 informed Complainant that she was not selected for the Science and Technology (S&T) Lead position for a project. d. Whether Complainant was subjected to discrimination based on sex and reprisal (DON Docket #16-66604-02359) by the Deputy Director for Undersea Warfare NUWC HQ (Deputy Director)2 when: 1. on December 20, 2019, the Deputy Director refused to shake Complainant’s hand, turned away and did not acknowledge her presence during a wake for a colleague; and 2. on June 29, 2020, the Deputy Director sent Complainant an inaccurate meeting time that prevented her from attending a meeting, while other employees were properly notified of the accurate time. In its final decision dated September 11, 2020, the Agency dismissed the formal complaint on several procedural grounds. First, the Agency dismissed claims a, b, and c, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that the same claims were raised in a prior EEO complaint, identified as DON Case Number 20-66604-01909. 2 The Deputy Director worked at the Naval Undersea Warfare Center Headquarters located in Washington, D.C. 2021000130 3 Second, the Agency dismissed claim d(1), pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency determined that Complainant did not initiate EEO counseling until May 8, 2020, which the Agency found well beyond the 45-day limitation period. Finally, the Agency dismissed claims d(1) and d(2), pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant was not aggrieved. The instant appeal followed. On appeal, Complainant acknowledges, through counsel, that she filed a prior complaint that includes the same alleged actions that Complainant has raised in the instant complaint. However, Complainant argues that she never intended to file a separate complaint. Rather, Complainant asserts that the Agency directed her to file a separate complaint because her prior complaint, as well as the instant complaint, included alleged incidents conducted by responsible management officials (RMOs) assigned to the NUWC District in Rhode Island as well as an RMO assigned to the NUWC HQ in Washington, D.C. For this reason, Complainant requests that the Commission stay any decision on the instant appeal until the Agency issues a decision on the prior complaint. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. The Agency properly dismissed the formal complaint for raising the same matter that was raised in a prior complaint (DON Case Number 20-66604-01909).3 A copy of Complainant’s prior complaint is included in the record as well as the Agency’s September 15, 2020 partial acceptance of the prior complaint. Our review indicates that Complainant alleged that she was discriminated against based on her sex and in reprisal for prior protected EEO activity. Our review of the letter of partial acceptance indicates that the Agency only accepted for investigation, what are identified in the instant complaint as claims c(2) and c(3).4 The Agency dismissed what are identified in the instant complaint as claims a, b, c(1), d(1), and d(2) on procedural grounds. Any appeal of these dismissed claims should be addressed with the prior complaint. Therefore, the claims Complainant raised in the instant complaint are identical to the matters already raised by Complainant. 3 The record indicates that Complainant filed the prior formal complaint on August 16, 2020. 4 The Agency accepted additional claims that are not included in the instant complaint. 2021000130 4 Because we find that all claims in the instant complaint are identical to the claims raised in Complainant’s formal complaint, we need not address the Agency’s alternative grounds for dismissal. We further deny Complainant’s request for a stay in this matter as all claims in the instant complaint have been previously raised by Complainant. The Agency’s final decision dismissing the instant formal complaint for the reason stated above is AFFIRMED. 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. 2021000130 5 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). 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 February 23, 2021 Date