Donovan O.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 16, 2016

0520160393 (E.E.O.C. Aug. 16, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Donovan O.,1
Complainant,

v.

Eric K. Fanning,
Secretary,
Department of the Army,
Agency.

Request No. 0520160393

Appeal No. 0120132039

Agency No. ARUSMA11NOV05030

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120132039 (Mar. 20, 2015). 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(c).

On February 15, 2011, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), and age (47)
when his name was removed from the referral list for the position of Custodial Services
Worker, WG-3501-03, announced in Vacancy No. NEBRU174855DR.

On April 11, 2013, the Agency issued its final Agency decision (FAD) finding that
Complainant was not subjected to discrimination as alleged. In the FAD, the Agency
determined that management explained that Complainant was removed from consideration for
the Custodial Services Worker position because his prior employment with the Agency
reflected that he had been removed from the Agency during a previous probationary period,
and had been absent without leave. The Agency found that Complainant failed to rebut the

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.
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Agency’s reasons as pretextual. As a result, the Agency concluded that Complainant failed to
show that he was subjected to discrimination. Complainant appealed and, in Complainant v.
Dep’t of the Army, EEOC Appeal No. 0120132039 (Mar. 20, 2015), the Commission
affirmed the FAD.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and reiterates arguments previously raised on appeal. 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.

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. 0120132039 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
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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 16, 2016
Date