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

Equal Employment Opportunity Commission

Sep 16, 2021

Appeal No. 2020002086 (E.E.O.C. Sep. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tammy E.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Request No. 2021003094 Appeal No. 2020002086 Hearing No. 570-2013-00757X Agency No. DON11-0024-00185 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Tammy E. v. Dep’t of Defense, EEOC Appeal No. 2020002086 (Mar. 29, 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, a Supervisory Program Analyst, was a Department of the Navy employee who worked at the Agency’s facility in Dahlgren, Virginia. On December 12, 2011, Complainant filed a formal EEO complaint, subsequently amended, claiming discrimination and harassment based on sex (female) 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. 2021003094 2 a. during February 2011 through December 2011, Complainant’s first level supervisor subjected her to bullying, unfair treatment, vague and ambiguous supervisory direction, and rude emails; and b. on October 12, 2011, Complainant was removed from her supervisory position as Deputy of Acquisitions and Contracts and placed in the non-supervisory position of Special Assistant. Complainant also alleged that she was unlawfully retaliated against for engaging in protected activity when: c. on October 2011, Complainant’s supervisor contacted the Navy Seal Systems Command (NAVSEA) office; and d. on November 29, 2011, Complainant was moved from a large private office with a door and window to a cubicle in a trailer, with no privacy. On September 30, 2019, an EEOC Administrative Judge issued a decision by summary judgment, over Complainant’s objections, in favor of the Agency. In doing so, the AJ acknowledged that Complainant alleged there were facts were in dispute. However, the AJ determined that Complainant’s disputes were either not material to the ultimate adjudication of her claims or relied on assertions not supported by the record. Consequently, the AJ granted the Agency’s motion for summary judgment. The AJ further acknowledged that in response to the Agency’s motion for summary judgment, Complainant sought to amend the first two claims to include retaliation as a basis and she identified her first level supervisor (S1) as the responsible management official. However, the AJ determined that S1 had no knowledge of Complainant’s prior protected EEO activity prior to November 2011, and the allegations at issue occurred before this period. Although the AJ indicated that Complainant alleged that she opposed unlawful discrimination as early as February 2011, the AJ determined that Complainant’s claim was not sufficiently and expressly connected to discrimination to constitute protected activity. The AJ also acknowledged that Complainant sought to amend her formal complaint in response to the Agency’s motion for summary judgment to raise gender stereotyping as a claim for the first time. The AJ explained that there was no evidentiary basis for Complainant to raise this claim and the AJ determined that Complainant’s inclusion of this claim was a “last-ditch effort” to avoid summary judgment. The AJ determined that the record reflects that NAVSEA contacted S1 about a detail assignment for Complainant and sought S1’s opinion. Although S1 indicated that the proposed detail was not appropriate for Complainant, the AJ noted that Complainant was ultimately placed in a detail, effective January 2012. 2021003094 3 The AJ further noted that Complainant was assigned a cubicle as her workstation because, due to an Agency reorganization, she was no longer a supervisor and she was waiting for her detail assignment. The AJ also explained that approximately fifty other employees were relocated to trailers with limited private office space as a result of the reorganization. In EEOC Appeal No. 2020002086, we determined that Complainant failed to identify any material facts in dispute. The 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 submits statements expressing her 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. 2020002086 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. 2021003094 4 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 September 16, 2021 Date