0520180478
09-14-2018
Terese D.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Terese D.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Request No. 0520180478
Appeal No. 0120160785
Hearing No. 490-2015-00075X
Agency No. 146822101458
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120160785 (June 14, 2018). 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 was a Contract Specialist, 1102, GS-12, at the Agency's Bureau of Naval Personnel in Millington, Tennessee. Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), sex (female), disability, and reprisal when: (1) on a routine basis since 2012, her first-level supervisor disregarded her professional work product, subjected her to excessive scrutiny, and sought ratification of her work product from her lower-graded GS-7 subordinate; (2) on April 2, 2013, her first level supervisor refused to accommodate her disability when she was reassigned to the mailroom; (3) on September 30, 2013, and April 22, 2014, she received diminished performance appraisals, and her first level supervisor did not recognize or award her performance; and (4) on February 13 and 19, 2014, she was subjected to hostile, demeaning, and humiliating treatment.
The Agency dismissed reprisal as a basis, and investigated the race, sex, and disability claims. Complainant requested a hearing and requested that reprisal be reinstated as a basis. According to the record, the EEOC Administrative Judge stated that reprisal should not have been dismissed as a basis. Complainant subsequently withdrew her hearing request. The Agency then issued a final Agency decision affirming its dismissal of reprisal as a basis and finding no discrimination related to the other bases. Complainant appealed.
Our prior decision found that the Agency improperly dismissed reprisal as a basis and remanded the matter for a supplemental investigation. To avoid fragmentation, the prior decision declined to address the merits of the Agency's final decision concerning discrimination based on race, sex, and disability.
In its request for reconsideration, the Agency argues that our previous decision failed to consider the merits of various motions centering on the qualifications of Complainant's attorney as a licensed attorney and how this might impact on the timeliness of the filing of the complaint in this case. At this juncture, we conclude this has no bearing on our prior decision and note that we have the authority to excuse any untimely filing by Complainant. 29 C.F.R. � 1614.604(c). We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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. The Agency 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. 0120160785 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER (E0618)
The Agency is ordered to take the following actions:
Within ninety (90) days of the date this decision is issued, the Agency shall undertake and complete a supplemental investigation of this complaint, by obtaining detailed sworn statements and relevant documentation in the following manner:
1. The EEO Investigator shall fully investigate Complainant's reprisal claim, including by contacting, to the extent possible, all of the witnesses whom Complainant identified as supportive of her claims. If any of Complainant's named witnesses are no longer employed with the federal government and cannot be contacted or are unwilling to provide a statement, this shall be clearly stated in the report of the supplemental investigation.
2. Complainant shall have the opportunity to submit rebuttal affidavit(s).
The Agency shall instruct the investigator to compile the above information into a supplemental investigative report and transmit it to the Agency within ninety (90) days of the date this decision is issued. No later than thirty (30) days after receiving the report, the Agency will provide Complainant with a copy of the report and also provide a copy to the Compliance Officer reference below. Upon completion of the investigative report and receipt by Complainant, the Agency shall issue a final decision that covers all bases alleged in her complaint.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
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.
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
September 14, 2018
__________________
Date
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.
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