Elenore F.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

May 2, 2019

2019002105 (E.E.O.C. May. 2, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Elenore F.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Request No. 2019002105

Appeal No. 0120182316

Agency No. DON144215801924

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Elenore F. v. Dep’t of the Navy, EEOC Appeal No.
0120182316 (Oct. 31, 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, a GS-0840-11 Nuclear Engineer at the Agency's Nuclear Facilities and Waste
Engineering Division facility in Portsmouth, Virginia, filed a formal complaint alleging that the
Agency subjected her to discrimination and a hostile work environment on the basis of sex (female)
as evidenced by eight incidents occurring between June 2013 and April 2014. Following an
investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The
AJ assigned to matter granted the Agency’s motion for summary judgment and issued a decision
finding that Complainant had not been subjected to discrimination or a hostile work environment
as alleged.

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.
2019002105

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Complainant appealed, and the Commission found that the AJ properly granted summary judgment
Complainant as the record was adequately developed and no genuine issues of material fact
existed. Thus, the Commission concluded that Complainant failed to establish that any of the
incidents were motivated by discrimination as alleged.

In her request for reconsideration, Complainant extensively recites facts and argues that she proved
she was subjected to discrimination. Complainant further contends that it was improper for the AJ
to accept S1’s explanations at the summary judgment stage. In response, the Agency argues that
Complainant’s request is another motion for summary judgment and a second appeal and that
Complainant does not make any argument tending to demonstrate that the Commission’s decision
involved a clearly erroneous interpretation of fact or law.

The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. EEO MD-110, at 9-18; 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.

The Commission finds that the arguments raised by Complainant in the instant request were largely
raised in her previous appeal, fully considered, and rejected. Complainant has not presented any
persuasive arguments demonstrating that the AJ erred in finding that Complainant failed to set
forth sufficient facts showing that there was a genuine issue still in dispute. Further, the
Commission finds that the AJ’s decision appropriately indicated that the record was fully
developed, that she considered all of the record evidence in the light most favorable to
Complainant, and that the evidence established that Complainant failed to show that she was
subjected to discrimination as alleged. Complainant has not presented any evidence demonstrating
that the Commission erred in finding that the AJ properly granted summary judgment in this
matter. Moreover, the Commission finds that Complainant has not presented any evidence to
support reconsideration of the Commission’s finding that she failed to show that she was subjected
to discrimination.

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. 0120182316 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.

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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

May 2, 2019
Date