[Redacted], Jordon S.,1 Complainant,v.Richard Giacolone, Director, Federal Mediation and Conciliation Service, Agency.

Equal Employment Opportunity Commission

Jan 27, 2021

Appeal No. 2020002717 (E.E.O.C. Jan. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jordon S.,1 Complainant, v. Richard Giacolone, Director, Federal Mediation and Conciliation Service, Agency. Request No. 2021000250 Appeal No. 2020002717 Agency No. 2018-002 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Jordon S. v. Fed. Mediation & Conciliation Serv., EEOC Appeal No. 2020002717 (Sept. 10, 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). Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 12, 2018, Complainant entered into a settlement agreement with the Agency to resolve the matter. The agreement provided in relevant part that the Agency would: Schedule [Complainant] to interview with the [Agency] interview panel in Atlanta, GA, on a date between September 18 and September 20, 2018, and to be considered for the Agency 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. 2021000250 2 mediator positions in Atlanta, GA; Chesapeake, VA; and Birmingham, AL, that are currently open. Allow [Complainant] to interview for any [Agency] mediator positions that open in Missouri or in any states contiguous to Missouri (Illinois, Oklahoma, Kentucky, Tennessee, Arkansas, Kansas, Nebraska, Iowa) within twenty-four months of the signing of this Agreement. By letter dated January 10, 2020, Complainant notified the Agency that it had breached the settlement agreement and he requested that his underlying EEO complaint be reinstated. Complainant claimed that the agreement specified that the Agency agreed to interview him for all mediator positions within states contiguous of Missouri, but in July 2019 the Agency failed to interview him for a mediator position in the Peoria, Illinois office. The Agency subsequently issued a final decision wherein it determined that no breach occurred. The Agency reasoned that although the vacancy announcement for the Peoria position was posted from July 15, 2019 through August 5, 2019, no interviews took place and no offers were presented to candidates for the position. The Agency further determined that Complainant’s allegation of breach was untimely given that more than 30 days had passed since he was aware of the alleged non-compliance. On appeal, the Commission affirmed the Agency’s final decision. We found that the Agency’s actions were in compliance with the December 12, 2018 settlement agreement. We stated that the settlement agreement did not obligate the Agency to notify Complainant about vacancies nor provide him with an interview for every vacancy regardless of whether or not he applied. We noted that Complainant did not dispute that he did not apply for the Peoria vacancy. Thus, we found that Complainant was not entitled to an interview. We observed that once interviews for the Peoria position were scheduled for January 2020, Complainant was scheduled for an interview on January 7, 2020, but he subsequently canceled the interview. We determined that Complainant’s decision not to participate in the scheduled interview did not constitute a breach by the Agency. 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. In his request for reconsideration, Complainant expresses his disagreement with the previous decision and reiterates arguments previously made on appeal. The Commission finds that the arguments raised by Complainant in the instant request for reconsideration are not sufficient to establish that the Agency failed to comply with the settlement agreement. We find that Complainant has not presented any argument or evidence that satisfies the criteria of a request for reconsideration. 2021000250 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. 2020002717 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 27, 2021 Date