[Redacted], Chad M., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 25, 2021

Appeal No. 2019005891 (E.E.O.C. Mar. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chad M.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Request No. 2021000709 Appeal No. 2019005891 Hearing No. 480-2018-00091X Agency No. ARCEJAPAN17MAR00932 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Chad M. v. Dep’t of the Army, EEOC Appeal No. 2019005891 (Sept. 21, 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 was an applicant for a Supervisory Interdisciplinary Engineer/Architect position in Okinawa, Japan. On April 25, 2017, Complainant filed a formal EEO complaint claiming that he was discriminated against based on race (Asian), national origin (India), religion (Islam), age, and in 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. 2021000709 2 reprisal for prior protected EEO activity when, on March 21, 2017, Complainant received notice that he was not referred for the Supervisory Interdisciplinary Engineer/Architect position. 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 June 25, 2019, the AJ issued a decision by summary judgment in favor of the Agency. The AJ determined that the Agency provided legitimate, non-discriminatory reasons for Complainant’s non-selection. Specifically, the AJ found that the job vacancy announcement was only open to current Agency employees. Because Complainant was not a current Agency employee, he was outside the area of consideration, and therefore, was not referred for the position. 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. Our prior decision determined that there were no genuine issues of material fact and affirmed the AJ’s finding of no discrimination. In the instant request for reconsideration, Complainant submits a statement expressing disagreement with the appellate decision and reiterating 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. 2019005891 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. 2021000709 3 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 March 25, 2021 Date