[Redacted], Hipolito P., 1 Complainant,v.Norris Cochran, Acting Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Jan 26, 2021

Appeal No. 2020000181 (E.E.O.C. Jan. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hipolito P.,1 Complainant, v. Norris Cochran, Acting Secretary, Department of Health and Human Services, Agency. Request No. 2021000567 Appeal No. 2020000181 Hearing No. 410-2017-00348X Agency No. HHS-OS-0080-2016 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Hipolito P. v. Dep’t of Health & Human Servs., EEOC Appeal No. 2020000181 (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). Complainant, a GS-13 Senior Auditor at the Agency's Office of Audit Services (OAS), Office of Inspector General (OIG) in Atlanta, Georgia, filed an EEO complaint alleging that he was discriminated against on the bases of his sex (male) and age (over 40) when: (1) on or about August 19, 2016, Complainant was notified he was not selected for a Supervisory Auditor, GS-14, position advertised under Vacancy Announcement No. HHS-OIG-OAS-MP-1732139-TLG; and (2) Complainant’s 2015 Performance Management Appraisal Program (PMAP) was lowered from “Outstanding” to “Excellent.” 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. 2021000567 2 Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter granted summary judgment in favor of the Agency and issued a decision finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. In the appellate decision, the Commission affirmed the final order finding that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions as pretextual. In the instant request, Complainant argues the AJ failed to properly consider his argument in opposition to summary judgment that discovery was necessary to determine whether the selection process for the Supervisory Auditor position was improperly flawed. We note that Complainant submitted no argument in support of his initial appeal. 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). A request for reconsideration is not the time for Complainant to raise new evidence or new arguments. 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. Complainant has not presented any persuasive evidence to support reconsideration of the Commission’s decision. 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. 2020000181 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. 2021000567 3 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 26, 2021 Date