U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anthony L.,1 Complainant, v. Steve Jurczyk, Acting Administrator, National Aeronautics and Space Administration (Langley Research Center), Agency. Request No. 2021001472 Appeal No. 2019005932 Hearing No. 430-2019-00465X Agency No. NCN-15-LaRC-00078 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019005932 (Nov. 30, 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 Technical Engineer within the Metals Applications Technology Branch, Engineering Directorate at the Langley Research Center in Hampton, Virginia. On November 6, 2015, Complainant filed a formal EEO complaint on the bases of age and in reprisal for protected activity (instant matter). By letter dated January 13, 2016, the Agency accepted the following claims for investigation: 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. 2021001472 2 1. Because of [his] age, [Complainant was] discriminated against when: a. In June 2015, [Complainant was] not reassigned from the Engineering Directorate (ED) to an Engineering Technician position in the Research Directorate (RD) that would have extended his three-year term appointment for one additional year, because his ED supervisors made negative and false statements about him, that dissuaded the RD from selecting him; and b. His three-year term was allowed to expire on August 26, 2015, and he was not converted to a permanent position. 2. In retaliation for prior EEO activity (the instant complaint), his supervisor placed him on administrative leave from August 19, 2015, through August 26, 2015, pending the expiration of his term appointment, and required him to contact his supervisor prior to attempting to gain access to the Center, which affected his right to confidentiality in meeting with EEO personnel and other potential avenues of redress.2 Upon completion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 1, 2017, the Agency filed a Motion for a Decision without a Hearing (Agency’s Motion). The Agency’s Motion argued that Complainant failed to establish a prima facie case of age discrimination regarding claims (1)(a)-(1)(b). In addition, the Agency’s Motion argued that Complainant failed to establish a prima facie case of reprisal regarding claim (2). Finally, the Agency’s Motion asserted that even assuming arguendo that Complainant failed to establish a prima facie case of discrimination and/or retaliation, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish were pretext for discrimination and/or retaliation. Complainant filed an Opposition to the Agency’s Motion (Complainant’s Opposition) on September 22, 2017. On August 14, 2019, the AJ issued a Decision Without a Hearing. Therein, the AJ found Complainant’s Opposition to be untimely and declined to consider it. The AJ adopted the Agency’s Motion in its entirety. On August 23, 2019, the Agency issued a final order implementing the AJ’s decision without a hearing. Complainant filed the instant request for reconsideration. In his request, Complainant asserts that he did not anticipate the Commission’s Office of Federal Operations (OFO) to address the merits of his complaint in its initial decision. Rather, Complainant expected OFO to only address the issue of whether his Opposition to the Agency’s Motion was timely. 2 The Agency dismissed several other claims on procedural grounds. Complainant did not expressly contest these as part of his initial appeal. Thus, our prior decision did not address the dismissed claims. 2021001472 3 Thus, Complainant asserts that he was denied the opportunity to address the Agency’s Motion. Finally, Complainant asserts that OFO did not address the issue of the timeliness of his Opposition. In response, the Agency asserts that Complainant fails to meet the criteria for a request for reconsideration. The Agency states that OFO addressed numerous arguments raised by Complainant in his Opposition. The Agency also asserts that Complainant and his attorney should have anticipated that OFO would address the merits of the case. The prior decision properly affirmed the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination. While the initial decision did not expressly find Complainant’s Opposition to be timely, the prior decision did address arguments raised by Complainant in his Opposition.3 We find that the prior decision properly found that even assuming arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish were pretext for discrimination and/or retaliation. We concur with the Agency that Complainant should have addressed the merits of the complaint as part of his initial appeal. We remind complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Aug. 5, 2015), Chapter 9. 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. 2019005932 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. 3 Even assuming arguendo that Complainant’s Opposition is timely and considering it as part of the record, we find that our prior decision properly affirmed the AJ’s decision without a hearing finding no discrimination. 2021001472 4 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 April 22, 2021 Date
