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

Equal Employment Opportunity Commission

Feb 23, 2023

Appeal No. 2021000552 (E.E.O.C. Feb. 23, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colby S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Request No. 2022005162 Appeal No. 2021000552 Hearing No. 480-2020-00320X Agency No. DON 19-69218-00395 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021000552 (August 31, 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 events giving rise to this complaint, Complainant was employed by the Agency as a Mechanical Engineer, GS-0830-12 at the Agency’s Naval Facilities Engineering and Expeditionary Warfare Center in Port Hueneme, California. On February 8, 2019, Complainant filed a formal EEO complaint, alleging discrimination by the Agency on the bases of physical disability (Central Auditory Processing Disorder and a service-connected hearing loss) and age (50). In his complaint, Complainant raised the following claims: 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. 2022005162 2 1. Complainant was subjected to disability and age discrimination, including harassment/a hostile work environment when: a. In October 2018, a professional engineering (P.E.) license, was included as a requirement for a position in order to exclude him from consideration for that position (he became aware that he was not selected for the position of Interdisciplinary Engineer, GS-13); b. In November 2018, he was not invited to attend a meeting with the Naval Facilities Engineering Command Resiliency Energy Program Office; c. He was not invited to present a subject to the Naval Civil Engineer Corps Officers School; d. He was not invited to publish a professional article in the Naval Engineers Journal; and e. On 11 occasions, his Navy technology development efforts were sabotaged in order to destroy his reputation. 2. Complainant was subjected to unlawful retaliation for protected EEO activity related to the instant complaint when: a. On or around January 28, 2019, his second level supervisor (“S2”) sabotaged his efforts to be involved in the Marine Corps Controllable Load Program Development by denying his request to travel to a meeting and sending another employee; b. On April 24, 2019, Complainant learned his one-page white paper had not been forwarded to Naval Research Energy System Technology Evaluation Program Program Management at Space and Naval Warfare System Command Pacific, even through three other papers submitted by the Electrical Engineer, GS-850-12 had been forwarded; and c. On August 16, 2019, Complainant learned the research proposal submitted and was not funded. 3. Complainant was subjected to harassment/a hostile work environment based on his disability and age when: a. In May or June 2016, he was ordered to return to work for S1 even though he believed that his workplace was a hostile work environment; b. On July 21, 2017, S1 prevented him from pursuing a patent; and 2022005162 3 c. On April 2, 2018, he was not allowed to enroll in safety courses that were necessary for conducting his work duties. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The assigned AJ issued a summary judgment decision, finding no discrimination or unlawful retaliation was established. The Agency then issued a final order implement the AJ’s decision. Complainant appealed. In EEOC Appeal No. 2021000552, the Commission affirmed the Agency’s final order which implement the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. 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.2 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. 2021000552 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. 2 We not that in his request for reconsideration, Complainant asks that the Commission combine the instant matter with Agency No. DON 22-69218-00753. It appears that Agency No. DON 22- 69218-0075 is still pending with the Agency. Therefore, Complainant is advised that the Commission cannot consolidate complaints pending before the Agency with appeals from Agency decisions. 2022005162 4 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 February 23, 2023 Date