Lamont C.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 6, 2019

0520180580 (E.E.O.C. Feb. 6, 2019)

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.
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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.

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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