[Redacted], Johnathon M., 1 Complainant,v.Denis McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 25, 2021

Appeal No. 2020004810 (E.E.O.C. Feb. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Johnathon M.,1 Complainant, v. Denis McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021001056 Appeal No. 2020004810 Hearing No. 520-2018-00339X Agency No. 200H-0561-2017900278 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Johnathon M. v. Department of Veterans Affairs, EEOC Appeal No. 2020004810 (November 9, 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 alleged that the Agency discriminated against him based on race and national origin when, on August 3, 2017, Complainant learned that he was not selected for the Detective position for which he had applied under Job Announcement No. BH- 17-MSD-1964597-BU. 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. 2021001056 2 Following an investigation, Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). We note that three other Complainants from the same Agency also filed a formal complaint (Agency Nos. 200H-0561-2017900162; 200H-0561-2017105067; and 200H-0561-2017105062) and requested hearings regarding the same matter in the subject complaint. The AJ consolidated the matters but still assigned separate hearing numbers for each of the complaints (Hearing Nos. 520-2018-00259X; 520-2018-00232X; and 520-2018-00316X). The Agency filed a motion for summary judgment for all four matters and Complainants, collectively represented by the same legal counsel, filed an opposition. On July 31, 2020, the AJ issued one final decision (without a hearing) in favor of the Agency. On August 5, 2020, the Agency issued a separate final order for the subject complaint. The Agency’s final order fully implemented the AJ’s decision. Complainant appealed the Agency’s final order to the Commission. In our previous decision we affirmed the Agency’s final order finding no discrimination. In his request for reconsideration, Complainant reiterates numerous arguments he previously raised in his appeal including that he was more qualified than the Selectee and that the Commission misapplied its prior precedent in Lenard H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001566 (May 12, 2020). 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) (Aug. 5, 2015), at 9-18; 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. 2020004810 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. 2021001056 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 February 25, 2021 Date