Lamont C.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionFeb 6, 20190520180580 (E.E.O.C. Feb. 6, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lamont C.,1 Complainant, v. Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Request No. 0520180580 Appeal No. 0120172843 Agency No. BOP-2015-01997 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120172843 (July 18, 2018). 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, an Education Program Specialist, GS-11, claimed that he was discriminated against on the bases of his national origin (Chinese), age (over 40), race (Asian), color (yellow), disability, and in reprisal for prior protected EEO activity when: 1. On June 8, 2015, Complainant was notified that he had not been selected for a Firearms Instructor positon at the Staff Training Academy in Glynco, Georgia, advertised under Vacancy Announcement No. GLN- 2015-003; 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. 0520180580 2 2. On August 11, 2015, Complainant was notified that he had not been selected for a Teacher Supervisor (Supervisor of Education) position in the Northeast Region of New York, New York, advertised under Vacancy Announcement No. NER-2015-0162; and 3. On October 10, 2015, Complainant was notified that he had not been selected for a Firearms Instructor position at the Staff Training Academy in Glynco, Georgia, advertised under Vacancy Announcement No. GLN-2015-005. Following an investigation, Complainant requested a final agency decision. In the decision, the Agency determined that no discrimination occurred with regard to each claim. The Agency stated as to claims (1) and (2) that Complainant did not demonstrate superior qualifications compared to those of the selectees and was at best equally qualified. In terms of claim (3), the Agency stated that Complainant was eliminated from consideration for the position at issue after he failed to provide a firearms instructor certification to establish that he met the minimum qualifications. The Agency also indicated that Complainant’s claims of reprisal with regard to not being promoted were being held in abeyance pursuant to the ruling in Turner v. Dep’t of Justice, EEOC Hearing No. 541-2008-00255X, certification of class affirmed in EEOC Appeal No. 0720110008 (Sept. 15, 2015). On appeal, the Commission affirmed the Agency’s final order. We found that the preponderance of the evidence did not establish that Complainant was subjected to discrimination as alleged. Further, the Commission found that Complainant’s reprisal-based claims were properly subsumed within the Turner class action. In his request for reconsideration, Complainant contends as to claims (1) and (3) that there was no requirement in the vacancy announcements that a candidate pass firearms instructor training and submit the training records. With respect to claim (2), Complainant argues that he has more years of job-related experience than the selectee. Further, Complainant raises several additional claims. 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), 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. Initially, we note with regard to Complainant’s contention that several claims were not addressed in our prior decision that these claims are presently before the Commission in a separate matter, EEOC Appeal No. 0120172386. Upon review of the record, we find that Complainant has not presented any persuasive evidence to support reconsideration of the Commission’s decision. Moreover, the Commission finds that Complainant has not presented any evidence to support reconsideration of the Commission’s finding that he failed to show that he was subjected to discrimination. 0520180580 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. 0120172843 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 February 6, 2019 Date Copy with citationCopy as parenthetical citation