[Redacted], Adolfo O., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2019004057 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adolfo O.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Request No. 2021000387 Appeal No. 2019004057 Hearing No. 430-2016-00399X Agency No. DON-16-3258A-00352 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Adolfo O. v. Dep’t Navy, EEOC Appeal No. 2019004057 (Sept. 23, 2020). 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). During the period at issue, Complainant worked as a Quality Assurance Specialist, GS-1910-11, at the Agency’s facility in Portsmouth, Virginia. On January 28, 2016, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race (African-American) and age (52) when on September 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. 2021000387 2 14, 2015, Complainant was not selected for the position of Equipment Specialist, GS-1670- 11/12, advertised under vacancy announcement number SE51670-12-1406861LG060822. After its investigation into the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On May 2, 2019, the AJ issued a decision by summary judgment in favor of the Agency. Because the Agency did not issue a final within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed prove that he was discriminated against as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant appealed. The previous decision determined that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position at issue. The decision found that Complainant was one of six candidates selected for interviews. All six candidates were asked the same questions, which were scored and rated by the interview panel. The decision indicated that the record reflected that Complainant received the lowest cumulative interview score out of the six candidates while the candidates who scored the highest and second highest were selected for the position. Specifically, the decision noted that selecting officials testified that Complainant’s responses to the interview questions were shallow and narrowly focused. In contrast, the Selectees’ responses were more detailed and focused on the factors relevant to the position in question. In the instant request for reconsideration, Complainant, represented by counsel, submits a statement expressing disagreement with the appellate decision and reiterates arguments previously made on appeal. However, 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 (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. 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. 2019004057 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021000387 3 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 February 2, 2021 Date