Nathan S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019003459 (E.E.O.C. Sep. 4, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Nathan S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 2019003459

Appeal No. 0120180342

Agency No. 200P-0612-2016104723

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Nathan S. v. Dep’t of Veterans Affairs, EEOC Appeal No.
0120180342 (Apr. 2, 2019). 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).

Complainant, a WG 6 Materials Handler at the Agency's Mather Hospital in Mather, California,
filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases
of race (African-American), age (54), and in reprisal for prior protected EEO activity when on July
5, 2016, Complainant was not selected for the position of Materials Handler Leader Position (WL-
6), under job announcement number 612-16-AP-1663168-BU.

The Agency investigated the complaint and subsequently issued a final decision after Complainant
failed to request a hearing before an EEOC Administrative Judge. Therein, the Agency found that
Complainant had not been subjected to discrimination or reprisal as alleged.

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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In our previous decision, we affirmed the Agency’s findings and conclusions. We found that the
Agency had articulated a legitimate and nondiscriminatory reason for not choosing Complainant
for the position, namely that his responses during the interview were not as strong as the responses
of four other candidates who all received higher interview scores than Complainant. In addition,
we noted Complainant’s failure to show that his qualifications were plainly superior to those of
the selectee. Ultimately, we concluded that Complainant failed to establish the existence of a
discriminatory or retaliatory motive on the part of any official involved in the selection process.

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), at 9-18 (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. Complainant has not done so here. He has
not presented any argument or evidence tending to establish the existence of either reconsideration
criterion. He merely reargues his appeal on the merits, raising the same generalized contentions
regarding violations of his rights that we rejected in our previous decision.

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. 0120180342 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.
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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

September 4, 2019
Date