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

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2021005024 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bella S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Request No. 2022003186 Appeal No. 2021005024 Hearing No. 430-2019-00421X Agency No. DON-18-00183-00669 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021005024 (April 21, 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). During the relevant time, Complainant worked as a GS-0303-7 Credentials Assistant at the Agency’s Naval Medical Center in Portsmouth, Virginia. On November 8, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (African-American) when, on August 2, 2018, she was terminated from her position during her probationary period. 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. 2022003186 2 Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing and issued a decision finding that Complainant did not establish that she was subjected to discrimination as alleged. When the Agency failed to timely issue a final order, the AJ’s decision finding no discrimination became the Agency’s final action. The AJ found that the Agency’s legitimate, nondiscriminatory reason for terminating Complainant was her failure to follow the privileging/credentialing process and her misrepresentations to management about a provider’s application for privileges. Complainant and a coworker (CW) testified at the hearing that her second-level supervisor (S2) was biased against interracial relationships and decided to terminate Complainant after learning Complainant’s significant other was white, but the AJ found this testimony to be lacking credibility. The AJ noted that Complainant had not raised this explanation for more than three years after her termination and that, before the hearing, she had provided an alternate theory of why S2 wanted to terminate her that had no apparent connection to her race. The AJ also determined that Complainant’s testimony was not credible regarding the provider’s application for privileges that was cited as a reason for her termination. In EEOC Appeal No. 2021005024, we found that the AJ’s conclusion that Complainant did not prove that she was subjected to discrimination was supported by substantial evidence. The appellate decision also found that there was no basis to reject the AJ’s credibility determinations. In her request for reconsideration, Complainant reiterates contentions and arguments that were raised, or that should have been raised, on appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VII.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. 2021005024 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. 2022003186 3 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 29, 2022 Date