[Redacted], Whitney B., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jul 22, 2021

Appeal No. 2020003923 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Whitney B.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Request No. 2021003008 Appeal No. 2020003923 Hearing No. 440-2019-00127X Agency No. CHI-18-0765-SSA DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003923 (March 29, 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 period, Complainant worked as a GS-12 Social Insurance Specialist at the Agency’s Office of Quality Review in Chicago, Illinois. On September 21, 2018, Complainant filed a formal EEO complaint alleging discrimination by the Agency based on race (African American), sex (male), age (over 40) and in reprisal for prior EEO activity when: 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 2021003008 1. on June 8, 2018, he was not selected for the GS-0105-13 Lead Social Insurance Specialist; and 2. on July 19, 2018, his performance evaluation was lowered. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. Thereafter, the Agency issued a final order adopting the AJ’s finding of no discrimination. In her decision, the AJ found that the formal complaint could be resolved without a hearing because no genuine dispute of material fact or questions of credibility existed. Following the investigation, the AJ determined that Complainant did not establish an inference of race, sex, or age discrimination regarding the non-selection to the Program Leader. The AJ noted that an independent panel made of three members evaluated all candidates for the Program Leader position. The panel members rated Complainant “far below the selectees and were unaware of his age and race.” Further, the AJ determined that Complainant did not create a genuine issue of material fact to show that his supervisor’s explanations for his performance evaluation were not believable. We note that the record reflects that Complainant’s supervisor regularly discussed his deficiencies in his performance. 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. 2020003923 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. 3 2021003008 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 July 22, 2021 Date