Charles B.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionAug 30, 20192019003338 (E.E.O.C. Aug. 30, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles B.,1 Complainant, v. Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency. Request No. 2019003338 Appeal No. 0120180532 Agency No. ARTACOM15OCT05021 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Charles B. v. Dep’t of the Army, EEOC Appeal No. 0120180532 (Apr. 9, 2019). 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, an applicant for employment and retired annuitant, filed a consolidated formal EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), religion (Jewish), age (70), and reprisal (prior EEO activity) when: 1. On September 10, 2015, he became aware that he had not been selected for the position of Supervisory Contract Specialist, GS-1102-13 (Vacancy Announcement No. NEAJ158134221467355); and 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. 2019003338 2 2. On December 10, 2015, he became aware that he had not been referred for the position of Management Analyst, GS-0343-11 (Vacancy Announcement No. NEAJ157954961525323D). The Agency investigated the complaint and issued a final decision based on Complainant’s request. Therein, the Agency found that Complainant had not been subjected to discrimination or reprisal as alleged. In its appellate decision, the Commission affirmed. With respect to the supervisory nonselection in claim (1), the Commission found that Complainant’s interview had been scheduled due to an administrative error. The selection panel members had reviewed the resumes and had determined that there were enough current Agency and government-wide employees such that they did not have to consider applications from retired annuitants. With respect to the nonreferral for the Management Analyst position in claim (2), the Commission found that although Complainant had been a Program Analyst at other agencies, he lacked the specialized experience the selecting official was seeking. Ultimately, the Commission concluded that Complainant did not present evidence sufficient to establish the existence of a discriminatory or retaliatory motivation on the part of any official responsible for the two personnel actions. We emphasize 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, at 9-18 (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. He has not presented any argument or evidence tending to establish the existence of either reconsideration criterion. He merely reargues his appeal on the merits, raising the same contentions that we rejected in our previous decision. 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. 0120180532 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. 2019003338 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 August 30, 2019 Date Copy with citationCopy as parenthetical citation