[Redacted], Judson G., 1 Complainant,v.Charlotte A. Burrows, 2 Chair, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity Commission

Jun 24, 2021

Appeal No. 0120181479 (E.E.O.C. Jun. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 Judson G.,1 Complainant, v. Charlotte A. Burrows,2 Chair, Equal Employment Opportunity Commission, Agency. Request No. 2020002388 Appeal No. 0120181479 Agency No. 2016-0038 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120181479 (December 4, 2019).3 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). For the reasons that follow, Complainant’s request for reconsideration is DENIED. 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. 2 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the adjudicatory authority. The Commission’s adjudicatory function is housed in an office that is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term “Commission” or “EEOC” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to the respondent party to this action. 3 Complainant’s request for reconsideration is postmarked January 7, 2020. We received the request on January 13, 2020. 2020002388 2 At the time of events giving rise to this complaint, Complainant worked as a Social Scientist Analyst, GS-0101-13, at the Agency’s Office of Research Information and Planning (ORIP). He was stationed at the Birmingham, Alabama District Office, but he reported to the Director of ORIP, who worked at the Agency’s headquarters in Washington, D.C. Complainant was hired on May 18, 2015, under a career conditional appointment, which required him to complete a 12-month probationary period. On April 26, 2016, Complainant was notified that he would be removed from his probationary position, effective April 29, 2016. In the underlying complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of age (over 40) and disability (physical and mental) when it removed him from his position during the probationary period. Following an investigation, Complainant requested a hearing before a contract Administrative Judge (AJ). On January 9, 2018, the AJ granted the Agency’s motion for a decision without a hearing because the AJ found no evidence of discrimination. The Agency subsequently issued a final order, fully implementing the AJ’s decision. Complainant timely appealed the final order to the Commission. On appeal, the Commission affirmed the Agency’s final order. In finding no discrimination, the Commission found that the Agency had legitimate, nondiscriminatory reasons for removing Complainant from federal service during his probationary period. Specifically, the Commission determined that the record fully supported the AJ’s finding that Complainant’s removal was due to deficiencies in his performance. The Commission concluded that Complainant could not persuasively show that the Agency’s articulated reasons were pretext for discrimination. As for Complainant’s denial of reasonable accommodation claim, the Commission found that Complainant could not establish that he was a qualified individual with a disability and, even assuming he were qualified, there was no evidence that he ever advised the Agency of his need for accommodation. After reviewing the previous decision and the entire record, the Commission finds that Complainant’s 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. In so finding, we agree with the Agency that Complainant’s contentions are largely reiterations of the same arguments that were previously made and fully considered in the underlying appellate decision. While we acknowledge Complainant’s contention that his performance was satisfactory, he has not shown that the underlying appellate decision involved a clearly erroneous interpretation of material fact or law. Complainant’s request for reconsideration therefore is DENIED. The decision in EEOC Appeal No. 0120181479 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 2020002388 3 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: /s/ Rachel See ______________________________ Bernadette B. Wilson’s signature Rachel V. See Acting Executive Officer Executive Secretariat June 24, 2021 __________________ Date