Nigel S.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 9, 2018

0520180285 (E.E.O.C. Aug. 9, 2018)

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

Nigel S.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Request No. 0520180285

Appeal No. 0120162748

Hearing No. 520-2015-00009X

Agency No. NY-13-0891-SSA

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120162748 (January 25, 2018). 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).

In his underlying complaint, Complainant, a Technical Expert, claimed that he was discriminated
against on the bases of his sex (male), age (72), and in reprisal for his prior EEO activity under
Title VII and the ADEA when: 1) on September 19, 2013, Complainant was not selected for the
position of Project Manager under Vacancy Announcement # SN-08809020-13; and 2) on
September 3, 2013, Complainant was not selected for the position of Disability Program
Administrator under Vacancy Announcement # SN-919088-13.

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.
0520180285

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The EEOC Administrative Judge (AJ) granted the Agency’s Motion for a Decision Without a
Hearing. The AJ found that no discrimination occurred. The AJ stated that Complainant failed to
establish a prima facie case of reprisal as to both selections. The AJ found that Complainant
established a prima facie case of sex and age discrimination with regard to each selection. As for
the Project Manager position, the AJ stated that in contrast to the selectee, Complainant did not
have similar leadership abilities in managing work-related projects and supervisors expressed
concerns in areas such as Complainant needing to be more proactive and completing work
assignments in a timely fashion. With regard to the Disability Program Administrator position,
the AJ noted that in contrast to the selectee, Complainant’s communication skills and initiative
were not considered to be strong traits. The AJ found that the Agency presented legitimate,
nondiscriminatory reasons for its selections. The AJ found that Complainant failed to establish
that the Agency’s articulated reasons for its selections were pretext intended to hide discriminatory
motivation. In its final order, the Agency implemented the AJ’s Decision.

On appeal, the Commission affirmed the Agency’s final order. We found with regard to claim (1)
that while Complainant’s qualifications were impressive, so were those of the selectee. We stated
that Complainant’s credentials were not clearly superior to those of the selectee. As for claim (2),
we noted that although the selectee’s medical policy background was mentioned as one of several
reasons for her recommendation, the fact that the selecting official stated that he chose the selectee
due to her negotiating and communication skills was sufficient to find that the AJ’s finding was
supported by the record.

In his request for reconsideration, Complainant contends that there is a material issue of fact
regarding the assessment of his work, the experience of the individuals selected for the positions
at issue, and the reasons for the selection for the Disability Program Administrator position.
Complainant argues that he should have been afforded the opportunity to cross-examine the
Agency’s witnesses. Complainant maintains that the Agency manipulated the selection process
for the Disability Program Administrator position by using criteria that was not listed in the
vacancy announcement and ignoring the experience criteria that was in the announcement but not
held by the selectee. Complainant argues that the selection official improperly considered medical
policy background, which he claims was not mentioned in the announcement. According to
Complainant, the AJ ignored his argument that the selectee had no experience in requirements
listed in the vacancy announcement such as DSDS operations, administrative fiscal matters, budget
policies and fiscal audit reports.

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), 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 presented any persuasive evidence to support reconsideration of the
Commission’s decision.
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The arguments presented by Complainant were previously presented on appeal and considered at
that time. Complainant has failed to establish that the Agency’s reasons for his nonselections were
pretext intended to hide discriminatory motivation.

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. 0120162748 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

August 9, 2018
Date