[Redacted], Samuel B., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 2021Appeal No. 2019005545 (E.E.O.C. Feb. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Samuel B.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Request No. 2021000694 Appeal No. 2019005545 Agency No. DON-15-42158-00873 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019005545 (September 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). Complainant worked as a Paint Work Leader, WL-9, in the Production Resources Department at the Agency’s Norfolk Navy Shipyard in Portsmouth, Virginia. He filed an EEO complaint alleging the following: 1. He was discriminated against on the bases of age, race (African-American), and sex (male) when, on January 20, 2015, his first-level supervisor treated him differently from his co-workers by assigning him to work on the second shift without advanced notice; and 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. 2021000694 2 2. He was discriminated against on the basis of race and in reprisal for prior EEO activity when, on February 6, 2015, the Deputy Superintendent issued him an oral reprimand after he inquired about getting paid for work on January 21 and 22, 2015. The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Regarding his allegation of reprisal, Complainant alleged that the instant complaint, which was filed on January 22, 2015, was the reason for his receiving an oral reprimand after inquiring about not getting paid for working on January 21 and 22, 2015. Complainant attested that, on January 20, 2015, his supervisor (Supervisor1) notified him that his schedule was being changed to the second shift, effective January 21, 2015, 10 minutes before the end of his shift, giving him less than 24 hours’ notice. Complainant did not report to work the second shift on January 21, 2015. He attested that, on that day, he reported to work during the first shift to speak with management about the schedule change and his inability to work the second shift. He attested that nobody would listen to him. He further attested that, at or around 7:35 am, he called the Zone Manager (Supervisor2) to ask who created the work list and was informed that the supervisors were responsible for making the list. He attested that, around 3:00 pm, he asked Supervisor2 who was going to pay him for the day, and Supervisor2 repeated the question and walked away. Complainant also did not report to work the second shift on January 22, 2015. Instead, he filed an EEO complaint and requested a meeting with his union representative and the Duty Superintendent (Supervisor3). Complainant alleged that a younger co-worker (CW1) was treated more favorably in that he was able to resolve his issue with a shift change with a phone call. He also alleged that these incidents occurred because of his race, as “blacks were forbidden to read in slavery days” and management did not think he knew his rights. He also alleged that these incidents occurred because of his age because management did not do this to anyone else his age. Supervisor1 attested that, on January 20, 2015, he and another supervisor (Supervisor4) notified all their employees coming to the project that they would report to either second or third shift, beginning January 21, 2015. Supervisor1 attested that the Resource Office was supposed to notify employees of the schedule change, but they failed to do so. He attested that, on January 20, 2015, when he and Supervisor2 discovered this, they personally notified employees who needed to be informed of their shift changes and they did so about 30 minutes before the end of the shift, to minimize disruption of the day’s work. 2021000694 3 Supervisor1 acknowledged that it was customary to provide three days’ notice when an employee is requested to switch shifts. He denied having any knowledge of CW1’s shift changes or any supervisory role over him. Regarding Complainant’s allegations about race being an issue, Supervisor1 pointed out that he and Supervisor3 were black males in management. Supervisor2 attested that, the week before January 19, 2015, he informed the Resource Office that he needed more people on his project for second shift, and he requested they send who was available to work at that time. Supervisor2 attested that he informed Supervisor1 and Supervisor4 of the shift the employees were supposed to work on January 20, 2015, but he did not know that Complainant was part of the group until that day. Supervisor2 explained that, usually, if an employee has an issue with a shift change, the employee would inform management. He attested that Complainant did not say anything when he was informed of the shift change and waited until January 21, 2015 to inquire about having been assigned to the second shift. Supervisor2 attested that he told Complainant that first shift was fully staffed, and he needed employees for the second shift of the project. He attested that Complainant said, “OK,” and walked away. Supervisor2 attested that Complainant reported to work on the second shift on January 23, 2015 and then went back to first shift on January 26, 2015, as directed by upper management. Complainant attested that he initially received annual leave instead of payment for January 21 and 22, 2015. He attested that, on or around February 3, 2015, he spoke with Supervisor3 about being paid for those days and Supervisor3 informed him that he did not know whether he could be paid for those days. Complainant attested that he was eventually paid for working those days, approximately one month later. Complainant attested that, on February 6, 2015, Supervisor3 issued an Oral Remand to him for being off the job site without permission. Complainant attested that he disagreed with the reprimand because he reported his absences and stated that he had no intention of reporting to work on the second shift on those days. He attested that Supervisor3 agreed to pay him for those days in exchange for his signature on the Oral Reprimand Notice, but Complainant refused to sign it. Complainant believed that, had he not spoken to Supervisor3 about being paid, he would not have been issued a reprimand. Complainant attested that he believed he received the reprimand because the work is performed by a majority of hourly black employees and management is mostly white. Supervisor3 attested that, on January 22, 2015, he decided to issue Complainant an Oral Reprimand for leaving the job site without permission on January 21 and 22, 2015, noting that, on January 21 and 22, 2015, Complainant did not report to work the second shift. However, he directed Complainant’s schedule be changed back to first shift after their meeting on January 22, 2015 and subsequently directed that Complainant be paid for those days. Supervisor3 attested that he explained to Complainant that he issued the Oral Reprimand because he failed to follow the appropriate sign-in procedure on January 21 and 22, 2015. 2021000694 4 Supervisor3 denied conditioning Complainant’s payment for those days on his signing of the reprimand, noting that a reprimand did not require the employee’s signature to be effective. He attested that he decided to pay Complainant for those days because several people saw Complainant in the Shipyard, the EEO office had a record of his presence, he spoke with Complainant on January 22, 2015, and Complainant had difficulty understanding what he did wrong on those days. The Paint Supervisor (Supervisor5) attested that he was Complainant’s supervisor in January and February 2015, and, on January 21, 2015, Complainant called at the start of the second shift and said that he needed to use sick leave for the day. Supervisor5 attested that he then followed normal procedures and informed Supervisor2 that Complainant called off for the day. Supervisor5 attested that Complainant did not report to work on January 22, 2015, did not call or give him a reason for his absence. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency did not issue a final order and the AJ’s decision became the Agency’s final decision. Complainant appealed to the Commission. On appeal, we affirmed the Agency’s final decision, concluding that the AJ’s issuance of a decision by summary judgment was warranted and Complainant failed to prove that the Agency subjected him to discrimination as alleged. Thereafter, Complainant filed the instant request for reconsideration. In so doing, he expressed his disagreement with the Commission’s previous decision, reiterating many of the facts and arguments that were previously considered. Having considered these arguments, we find that Complainant’s request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law in its conclusion that he failed to establish by a preponderance of the evidence that the Agency subjected him to discrimination, or that it would have a substantial impact of the policies, practices, or operations of the Agency. We remind Complainant 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep’t of Agriculture, 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. 2021000694 5 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. 2019005545 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 February 2, 2021 Date Copy with citationCopy as parenthetical citation