[Redacted], Will K., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 18, 2022

Appeal No. 2021000703 (E.E.O.C. Oct. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Will K.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Request No. 2022002989 Appeal No. 2021000703 Agency No. DON-18-62271-00082 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021000703 (April 6, 2022). 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). At the time of the underlying events, Complainant was employed by the Agency as a General Engineer, GS-0801-11, at the Naval Postgraduate School in Monterey, California. On September 18, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on age (76) when: 1. On March 11, 2017, he learned that his then first line supervisor (“S1a” around age 59) selected coworker 1 (around age 47) to perform his duties and responsibilities. 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. 2022002989 2 Additionally, he reported that was discriminated against and subjected to a hostile work environment based on reprisal for prior protected EEO activity under the ADEA when: 2. On or about October 2017, his new first line supervisor (“S1b” around age 57) as rating official and his second line supervisor (“S2” around age 68) as senior rating official gave him his annual performance assessment for the period of October 1, 2016 - September 30, 2017, rating it “unacceptable”; 3. On December 4, 2017, S1b added new duties to his critical performance elements without his involvement; 4. On April 13, 2018, S1b in a mid-term progress review assessed his performance as unsatisfactory for the period of October 1, 2017 - March 31, 2018, and on June 13, 2018, notified him that he failed the performance improvement plan (PIP) he started on April 13, 2018; and 5. On June 20, 2018, S1b proposed his removal, and on August 8, 2018, S2 notified him of his removal effective August 10, 2018. Following an EEO investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On his own initiative the AJ determined that the complaint did not warrant a hearing, and over Complainant's objections, made a decision by summary judgment finding no discrimination. The Agency’s final order implemented the AJ’s decision. Complainant filed an appeal. In EEOC Appeal No. 2021000703, we vacated and remanded the Agency’s final order with respect to claim 5 for additional processing by the Agency. Specifically, the Agency was ordered to issue a new final decision on the removal claim, claim 5, and provide Complainant active appeal rights on his removal claim to the Merit System Protection Board (MSPB). In reaching this conclusion, the prior decision noted that Complainant’s removal claim was “mixed case” and appealable to the MSPB. The prior decision specifically agreed with Complainant’s argument that the Agency erred by failing to issue a final decision appealable to the MSPB. 29 C.F.R. § 1614.302(d)(1)(ii). The prior decision also affirmed the AJ’s decision finding no discrimination with respect to claims 1 - 4. In the instant request for reconsideration, Complainant argues that the prior decision contains an error of constitutional law because he was not informed by the Agency that he had the opportunity to make an election between the MSPB and the Commission following the Agency decision. Complainant also argues that there is an EEOC policy of ignoring Agency violations of notice requirements, encouraging Agency's to further ignore those requirements.2 In response, the Agency argues that Complainant failed to demonstrate that the prior decision involved clearly erroneous interpretations of material fact or law, or will substantially impact Agency policies, practices, or operations. 2 Complainant’s arguments in his request for reconsideration pertain to his removal claim, claim 5; he does not address or explicitly disagree with the decision to affirm the Agency’s final decision as to claims 1 - 4. 2022002989 3 In the instant request for reconsideration, nothing that Complainant has submitted supports a determination that the prior decision affirming the Agency final order was in error. We acknowledge that Complainant has presented numerous arguments contending that the prior decision was improperly decided based on the Agency’s failure to inform him of his option to file a claim with the Commission and/or the MSPB. However, these arguments were explicitly considered in EEOC Appeal No. 2021000703 and the prior decision specifically agreed with Complainant and vacated and remanded claim 5 to the Agency to provide Complainant with a new final decision on his removal, which included active appeal rights to the MSPB. In the present case, we do not find that Complainant's arguments are necessary or persuasive in the context of his request for reconsideration. To the extent that Complainant presents arguments regarding the outcome of his claim at the MSPB following EEOC Appeal No. 2021000703, or with the enforcement of the orders included in the remand in EEOC Appeal No. 2021000703, we note that a petition for reconsideration is not the proper forum. It appears that Complainant has improperly conflated his discrepancies with the Agency’s actions and/or behavior following the prior decision with the validity of the prior decision itself. Ultimately, Complainant has not provided that the prior decision was clearly erroneous. Rather, Complainant has submitted arguments in an attempt to reassert his original claims regarding the Agency's failure to provide notice of the option to elect consideration by the MSPB. Furthermore, Complainant has submitted arguments which take issue with Agency actions following EEOC Appeal No. 2021000703. We note 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. Lastly, regarding Complainant's policy contentions, we do not find that he has shown that the prior decision substantially impacts policies of the Agency. Once again, it must be reiterated that the Commission decision in EEOC Appeal No. 2021000703 remanded and vacated claim 5. Complainant has not explained how this finding has any substantial impact on the policies of the Agency. 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. 2021000703 remains the Commission's decision. 2022002989 4 ORDER Within 30 days of the date of this decision, the Agency’s Office of Equal Employment Opportunity must issue a new final decision on the removal claim, pursuant to 29 C.F.R. § 1614.302(d), and give Complainant active appeal rights on his removal claim to the MSPB. In addition to issuing the new decision to Complainant, the Agency shall also send a copy to the amicus curiae attorney. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 2022002989 5 In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 October 18, 2022 Date