[Redacted], Nick S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.Download PDFEqual Employment Opportunity CommissionAug 16, 2021Appeal No. 2021000163 (E.E.O.C. Aug. 16, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nick S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Request No. 2021003050 Appeal No. 2021000163 Hearing No. 532-2019-00085X Agency No. 4V-363-0004-18 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021000163 (March 2, 2021). 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 relevant time, Complainant worked for the Agency as a Manager, Cleveland Maintenance Facility (VMF), EAS-19, located in Cleveland, Ohio. The Agency posted an announcement for the position of VMF Manager, EAS-21, through its eCareer system from February 13, 2018 through February 28, 2018. 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. 2021003050 2 Employment Handbook EL-312, Subchapter 74 and Standard Operating Procedures state that management may consider non-competitive applications of qualified employees for downgrade to a vacant, non-bargaining position at any time when applications are received, before the competitive process begins, and during the competitive process. Employees seeking non- competitive placement into a position at a lower level may submit a written request to the selecting official for consideration. On January 12, 2018, the Manager, Vehicle Operations (Selecting Official) received Person A’s request for a downgrade to a Level 21 VMF Manager position. On February 14, 2018, the Selecting Official reviewed Person B’s request for a downgrade. On February 21, 2018, the Selecting Official contacted the Human Resources Manager regarding the vacant EAS-21 position currently open for competitive bid. The Selecting Official noted that he had received two requests for downgrades and stated he “would like to award the position for a downgrade” and inquired whether he had to interview both of the candidates who requested a downgrade. The Selecting Official was informed that he did not have to interview the two candidates. However, he was advised that if he should choose to interview one of the individuals, he should interview both of them. The record reflects that on February 26, 2018, the Selecting Official and the Concurring Official interviewed both Person A and Person B. Complainant was not eligible for a transfer or reassignment to the position because it would have been a promotion for him. Thus, he had to apply for the position competitively. Complainant submitted his application for the VMF position. In his affidavit, he stated he applied for the VMF Manager position on February 27, 2018. However, he subsequently stated that he submitted his application on February 28, 2018, at 5:16 a.m. In a February 28, 2018 email at 11:47 a.m., the Selecting Official notified the Fleet Operations Specialist in Headquarters that he wanted the posting pulled from eCareer and would be hiring Person A, who had requested a downgrade, for the vacancy. In a February 28, 2018 email at 1:22 p.m., Complainant was informed that the job posting for the VMF position was cancelled. On September 24, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior EEO activity when: on February 28, 2018, he became aware that he would not be selected for the VMF Manager EAS-21 position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Administrative Judge (AJ). Complainant requested a hearing. 2021003050 3 The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant’s objections, issued a decision without a hearing on August 28, 2018. In her decision, the AJ determined that the Agency articulated legitimate, non-discriminatory reasons regarding its decision making for staffing and assigning the VMF Manger EAS-21 position. She noted that the vacancy that Complainant applied to was cancelled and a selection was made via the non-competitive process in which Complainant was not eligible to apply. The Agency’s response to the July 14, 2020 Notice of Intent incorporated the Notice of Intent subject to two corrections to the statement of facts indicating that Complainant’s application was actually submitted on February 27, 2018 as opposed to February 28, 2018. However, Complainant’s response appears to accept the application filing date as February 28, 2018 at 5:16 a.m. On the same day that Complainant applied, the subject vacancy announcement was cancelled and he was notified via email by Human Resources Shared Services that the subject position was cancelled. Furthermore, the AJ stated that once the subject position was cancelled, a selected was made through the non-competitive process in which Complainant was not eligible for. The Agency subsequently issued a notice of final action on September 3, 2020. The Agency’s final action fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In EEOC Appeal No. 2020000163, we concluded that the evidence of record fully supported the AJ’s decision that Complainant’s allegations of discrimination had not been proven. In his request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during his original appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. 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. 2021000163 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021003050 4 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 August 16, 2021 Date Copy with citationCopy as parenthetical citation