[Redacted], Tessa L., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Sep 20, 2022

Appeal No. 2021003463 (E.E.O.C. Sep. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tessa L.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency. Request No. 2022003088 Appeal No. 2021003463 Hearing No. 531-2020-00052X Agency No. HS-USCG-01057-2019 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Tessa L. v. Dep’t of Homeland Security, EEOC Appeal No. 2021003463 (Apr. 20, 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). On May 8, 2019, Complainant filed her complaint alleging discrimination and harassment based on race, sex, color, and in reprisal for prior EEO activity when: 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. 2022003088 2 1. On multiple dates, most recently March 25, 2019, the Intelligence Information Systems Processing Center Department Head and other officials have pressured Complainant to leave the Agency for a Joint Duty Assignment. 2. On March 20, 2019, the Intelligence Information Systems Processing Department Head ordered Complainant to teach him and the Intelligence Coordination Unit (ICC) Systems Development and Integration Division Chief the basics of writing statement of works. 3. From March 15-20, 2019, the Intelligence Information Systems Processing Department Head harassed Complainant with questions challenging her competence, while she was recovering from an anxiety attack, in order to correct a statement of work created by the Department Head, ICC Systems Development and Integration Division Chief and another employee in the division. 4. On March 12, 2019, the Intelligence Information Systems Processing Department Head, yelled and shouted at Complainant that everyone in the office would review her work, including those with no involvement in the projects. 5. On March 4, 2019, Complainant was officially moved from her supervisory IT position as MAGNet team lead, series 2210 Information Technology Specialist, to an unofficial position, series 1102 Contract Specialist. 6. On February 7, 2019, the Intelligence Coordination Center's Commanding Officer ordered Complainant to stop complaining about the Intelligence Information Systems Processing Division Chief and an investigation was initiated into alleged discrepancies in her timecards on 18 different dates from six to nine months prior. 7. On unspecified dates, the Intelligence Information Systems Processing Department Head stopped by her desk to see if she arrived to work on time and prohibited her from earning credit hours or compensatory time. Complainant requested a hearing before an EEOC Administrative Judge (AJ). After a hearing, the AJ issued a decision finding no discrimination. The Agency issued its final order adopting the AJ’s decision. Complainant appealed, and the Commission’s prior decision affirmed the Agency’s final order. In her request, Complainant provides no evidence to warrant granting her request. The Commission emphasizes 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) (Aug. 5, 2015), 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. Complainant has not done so here. 2022003088 3 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. 2021003463 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. 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 20, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shane L.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Request No. 2022003091 Appeal No. 2021003396 Hearing No. 430-2019-00430X Agency No. DON-18-42158-01193 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021003396 (April 18, 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 an Engineering Technician (GS-12), Code 138.3, at the Agency’s Norfolk Naval Shipyard in Portsmouth, Virginia. On November 8, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), and age (61) when he was not selected for a position of a Supervisory Quality Assurance Specialist (GS-13) PD-P366A, S/N 1353-1910928188. 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. 2022003091 2 Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, the Agency filed a motion for summary judgment. The AJ agreed that there were no genuine issues of material fact and issued a decision without a hearing concluding no discrimination was established. The Agency subsequently issued a final order fully adopting the AJ’s decision. Complainant appealed the decision to the Commission. In EEOC Appeal No. 2021003396, we found the AJ properly issued a decision without a hearing. Further, we determined the AJ correctly found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not show to be a pretext for unlawful discrimination. We noted the Agency provided specific reasons to support its decision to choose the Selectee over Complainant. Namely, the interview panel averred Complainant did not perform as well as the Selectee during the interview. Two panel members indicated Complainant’s interview responses were vague and incomplete, while another panel member stated Complainant was unable to describe how he would allocate resources for future work or explain the current safety issues within a shipyard. Contrastingly, the Selectee was knowledgeable about current safety shipyard events and provided a plan of action for keeping personnel safe. We found this explanation met the Agency’s burden to provide specific, clear, and individualized explanation for Complainant’s non-selection. In an effort to show pretext, Complainant provided only broad allegations of improper conduct and discrimination in other non-selections and he did not cite to any evidence to support his assertions. In his request for reconsideration of our decision in EEOC Appeal No. 2021003396, Complainant reiterates his contention that he was not selected due to his race and age. Complainant states he believes the white male Selectee has less combined Non-Destructive Testing experience and education than Complainant. Complainant asserts this is the second time he was passed over for promotion to the GS-13 Code 135’s Branch Head Position. Further, reasons Complainant, the Division Head has now intentionally given two white employees the opportunity to work in the GS-13 Supervisor position in an effort to promote them to the higher supervisory position. Complainant also notes that a younger white male filled a third GS-13 position for Code 135.1 Branch Head Position, and he did not see an announcement for that position. Complainant asserts he has 16 years of managerial experience, and that the timeline shows that Division Head had Complainant lured to Code 138.3 to ensure that an African American would not be able to compete for the position. The Agency filed a brief opposing Complainant’s request in which it argues Complainant has not met his burden to demonstrate a clear error of material fact or law relating to the Commission’s findings and decision. In order to merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Dep’t. of the Air Force, EEOC Request No. 05890749 (September 28, 1989). 2022003091 3 A request for reconsideration is not merely a form of a second appeal. Regensberg v. U.S. Postal Serv., EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. U.S. Postal Serv., EEOC Request No. 05900769 (September 27, 1990). Here, Complainant simply reiterates contentions and arguments raised, or should have been raised, on appeal. 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. 2021003396 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. 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 22, 2022 Date