Maximo S.,1 Complainant,v.Dr. Mark T. Esper, Acting Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Oct 1, 2019

2019004262 (E.E.O.C. Oct. 1, 2019)

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

Maximo S.,1
Complainant,

v.

Dr. Mark T. Esper,
Acting Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.

Request No. 2019004262

Appeal No. 0120180826

Agency No. DFAS000202014

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Maximo S. v. Dep’t of Def., EEOC Appeal No.
0120180826 (Apr. 23, 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, a GS-0343-12 Program Analyst at the Agency’s Payroll Services Directorate facility
in Cleveland, Ohio, filed an EEO complaint alleging that the Agency discriminated against him on
the basis of race (White) when, on or about November 19, 2013, he was not selected for the
position of Financial Specialist, 0501, GS-13, posted under vacancy number CL-972695-14.

Following an investigation, Complainant requested a hearing. The EEOC Administrative Judge
(AJ) assigned to the matter granted the Agency’s motion for summary judgment and issued a

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.
2019004262

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decision finding that Complainant had not been subjected to discrimination as alleged. The
Agency subsequently issued a final order fully implementing the AJ’s decision.

In the Commission’s appellate decision, we affirmed the final order finding that Complainant did
not show he was subjected to discrimination because he was unable to prove that the Agency’s
explanation for choosing the Selectee was pretextual. Specifically, Complainant and the Selectee
were two of 12 candidates referred to the selecting committee. The committee scored each
candidate’s applications and the Selectee ranked first while Complainant ranked sixth. The
committee referred the top three ranked candidates to the hiring official. The Selectee was chosen
based on his background, which included many years of military experience, and experience with
the system and how it operated and coordinated with the core pay system.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and largely reiterates the arguments he raised on appeal. In particular, Complainant
argues that the Selectee was preselected which was incompatible with merit system principles
addressing hiring and promotion.

The Commission emphasizes that a request for reconsideration is not a second appeal. 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. Complainant has not presented any persuasive evidence to support reconsideration
of the Commission’s 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. 0120180826 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.

2019004262

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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

October 1, 2019
Date