[Redacted], Aron J., 1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Jan 6, 2021

Appeal No. 2020001446 (E.E.O.C. Jan. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aron J.,1 Complainant, v. David Bernhardt, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Request No. 2021000256 Appeal No. 2020001446 Hearing No. 540-2017-00136X Agency No. DOI-BIA-16-0257 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Aron J. v. Dep’t of the Interior, EEOC Appeal No. 2020001446 (Sept. 14, 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). In his underlying complaint, Complainant, a Contract Information Technology Specialist at the Agency’s Southwestern Indian Polytechnic Institute (SIPI) in Albuquerque, New Mexico, claimed that he was subjected to discrimination and a hostile work environment in reprisal for his prior EEO activity when: 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. 2021000256 2 1. On September 25, 2015, his approval to attend VMware training in Denver, Colorado in October 2015 was rescinded by the Acting Information Technology Specialist. 2. On January 29, 2016, he was not selected for the position of Supervisory Information Technology Specialist, GS-22012-12, advertised under Vacancy Announcement No. 1499232. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding no reprisal. The AJ’s decision subsequently became the Agency’s final action. On appeal, the Commission affirmed the final action. We found that the Agency had articulated legitimate, non-retaliatory reasons for its actions. With regard to claim (1), we determined that the approval for Complainant to take VMware training was rescinded due to the expense of the training and the fact that Complainant had only five months left in his employment term. As for claim (2), we concluded that Complainant’s nonselection was because he lacked the required one year of specialized experience at the GS-11 level to be eligible for the GS-12 position at issue. We noted that Complainant had only nine months of specialized experience at the GS-11 level. As a result, the Commission found that Complainant was not subjected to reprisal as alleged. In his request for reconsideration, Complainant contends that he has new evidence to support his reprisal claim. With respect to claim (2), Complainant submits an affidavit from the selecting official’s executive assistant in which she states that the selecting official made it very clear to her that he was not going to interview Complainant or select Complainant. Complainant states that he had the highest score for the position and it was held open until after he would have exceeded the one-year GS-11 specialization requirement. With regard to the training at issue in claim (1), Complainant argued that his acting supervisor was mentally bullied by his second-level supervisor and was forced to rescind his training. 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. The Commission finds that the arguments raised by Complainant in the instant request for reconsideration are not sufficient to refute the Agency’s reasons for its actions in the matters at issue. Complainant has not shown that the rescinding of his approval for the VMware was not due to the cost and the fact that Complainant’s employment term was scheduled to conclude in five months. As for Complainant’s nonselection, Complainant has not demonstrated that the Agency’s assertion that he lacked one year of specialized experience at the GS-11 level at the requisite time was pretext intended to hide retaliatory motivation. Thus, the Commission finds that Complainant has not presented sufficient evidence to support reconsideration of the Commission’s finding that he failed to show that he was subjected to discrimination or harassment on the basis of reprisal. 2021000256 3 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. 2020001446 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 January 6, 2021 Date