Bruce E. Smith,

Complainant,



v. 



Ray Mabus,

Secretary,

Department of the Navy,

Agency.



Request No. 0520100287



Appeal No. 0120082983



Agency No. 07-40085-00236



DENIAL



Complainant timely requested reconsideration of the decision in
Bruce E. Smith v. Department of the Navy, EEOC Appeal No. 0120082983
(Feb. 16, 2010).  EEOC Regulations provide that the Commission may, in
its discretion, grant a request to reconsider any previous Commission
decision 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(b).



In the underlying case, Complainant alleged that he was discriminated
against and harassed, in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended 42 U.S.C. § 2000e et seq., on the basis
of race (Black) and in reprisal for prior EEO activity under Title VII
when: (1) Complainant's first-level supervisor (S1) assigned him to an
electrical job he had not done in 13 years without an experienced helper
in an attempt to set Complainant up for failure; (2) S1 assigned him
to take out trash and sweep; (3) S1 accused him of going to see an EEO
Counselor without permission; (4) S1 tried to check Complainant's cellular
phone to see if he had called an EEO Counselor without permission; (5)
S1 threatened to dock Complainant's pay if he attempted to contact an
EEO Counselor; (6) on three dates in January 2007, S1 placed Complainant
on AWOL status; (7) on November 20, 2006, Complainant's third-level
supervisor (S3) reassigned him from the Facilities Sustainment, Code
PRL 312, to the Facilities Sustainment Project, Code PRL313; and (8)
the Agency failed to select Complainant for reassignment to the position
of Production Controller (Construction), GS-1152-09.



In its prior decision, the Commission modified the Agency's final
decision, which found that Complainant failed to prove that he was subject
to discrimination or harassment as alleged.  The Commission affirmed the
Agency's finding of no discrimination with respect to claims 1, 2, 6, 7,
and 8, but reversed the Agency's finding of no discrimination with respect
to claims 3, 4, and 5, concluding that the Agency engaged in a per se
violation of the EEO regulations.  Regarding claim 8, the Commission found
that Complainant failed to establish a prima facie case of discrimination,
as the selecting official was unaware of Complainant's race or prior EEO
activity at the time he made the selection.  The Commission nevertheless
assumed, arguendo, that Complainant could establish a prima facie case
regarding claims 2 and 8 and found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions, which Complainant had not
shown to be pretextual.  Finally, the Commission found that Complainant
failed to establish a claim of harassment because he did not prove that
the alleged actions occurred because of his race or prior EEO activity
and the alleged actions were not sufficiently severe or pervasive to
constitute a hostile work environment.  



In his request for reconsideration, Complainant, through counsel,
contends that the Commission's prior decision incorrectly interprets
material facts as to claims 2 and 8.  Regarding claim 2, Complainant
argues that the Commission erroneously concluded that all employees,
not just Complainant, were ordered to take on duties such as taking
out trash and sweeping.  In addition, Complainant asserts that record
evidence supports his allegation that S1 acted in a harassing manner
towards him by assigning him those cleaning duties.  Regarding claim
8, Complainant argues that the Commission misconstrues important
facts, thereby affecting his ability to establish a prima facie case
of discrimination.  In addition, Complainant asserts that the Agency
did not follow proper procedures in its selection decision, and that,
"more likely than not, the flawed selection procedure is attributed to
Complainant's race and prior EEO activity rather than any legitimate
nondiscriminatory reason proffered by the Agency."  In response, the
Agency contends that Complainant has failed to establish that the prior
decision involved a clearly erroneous interpretation of material fact
or law, noting that Complainant's request for reconsideration is simply
a second appeal of the Commission's original decision.  



Upon review of the record and the request for reconsideration, we
find that Complainant's request does not establish that the appellate
decision involved a clearly erroneous interpretation of material fact or
law, or that the appellate decision will have a substantial impact on
the policies, practices, or operations of the Agency.  Complainant is
reminded 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-MD110), at 9-17 (Nov. 9, 1999).  Regarding claim 2,
Complainant did not address or dispute the prior decision's finding that,
in addition to the fact that Complainant had failed to prove that the
alleged action occurred because of his race or prior EEO activity, the
alleged action was not sufficiently severe or pervasive to constitute
a hostile work environment.  Regarding claim 8, we note that the prior
decision assumed, arguendo, that Complainant could establish a prima
facie case of discrimination.  In addition, Complainant did not address
the prior decision's determination that the Agency provided legitimate,
nondiscriminatory reasons its selections.   



After reconsidering 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(b), and it is the decision of the Commission to deny
the request.  The decision in EEOC Appeal No. 0120082983 remains the
Commission's decision.  There is no further right of administrative
appeal on the decision of the Commission on this request.



ORDER (C0610)



To the extent that it has not already done so, the Agency is ORDERED to
take the following remedial actions:



1.	The Agency shall provide EEO training to all managers at Naval
Facilities Engineering Command at Norfolk, Virginia.  The training shall
place special emphasis on the Agency's obligation to prevent retaliation
and interference with the EEO process.	The Commission does not consider
training to be a disciplinary action.



2.	The Agency shall consider taking disciplinary action against the
responsible supervisor (S1).  The Agency shall report its decision within
thirty (30) calendar days.  If the Agency decides to take disciplinary
action, it shall identify the actions taken.  If the Agency decides not
to take disciplinary action, it shall set forth the reason(s) for its
decision not to impose discipline.



3.	The Agency shall undertake a supplemental investigation to
determine Complainant's entitlement to compensatory damages under Title
VII.  The Agency shall give Complainant notice of his right to submit
objective evidence (pursuant to the guidance given in Carle v. Dep't of
the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993) and request objective
evidence from Complainant in support of his request for compensatory
damages within forty-five (45) calendar days of the date Complainant
receives the Agency's notice.  No later than ninety (90) calendar days
after the date that this decision becomes final, the Agency shall issue
a final agency decision addressing the issue of compensatory damages.
The final decision shall contain appeal rights to the Commission.
The Agency shall submit a copy of the final decision to the Compliance
Officer at the address set forth below.



4.	The Agency and its management shall cease and desist from
requiring that all contact with EEO counselors must be arranged through
management officials.



5.	The Agency shall post the attached notice, as detailed below.



The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."  The report shall include supporting documentation verifying
that the corrective action has been implemented.



POSTING ORDER (G0610)



The Agency is ordered to post at the Naval Facilities Engineering Command
in Norfolk, Virginia copies of the attached notice.  Copies of the notice,
after being signed by the Agency's duly authorized representative, shall
be posted by the Agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted.  The Agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material.  The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.



IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)



Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013.  The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
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 (Q0610)



This decision affirms the Agency's final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint.  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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing.  In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the Agency, or filed your appeal with the Commission.
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.  Filing a civil
action will terminate the administrative processing of your complaint.



RIGHT TO REQUEST COUNSEL (Z0610)



If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security.  See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within
the sole discretion of the Court.  Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File a Civil Action").



FOR THE COMMISSION:







______________________________

Carlton M. Hadden, Director

Office of Federal Operations





July 9, 2010

Date



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0520100287











U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

 Office of Federal Operations

P.O. Box 77960

Washington, DC 20013	 







2

0520100287