[Redacted], Gregory F., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Aug 18, 2022

Appeal No. 2021005067 (E.E.O.C. Aug. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregory F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Request No. 2022002634 Appeal No. 2021005067 Agency No. PH190108 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021005067 (March 22, 2022). 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 was a retiree seeking employment with the Agency. On October 31, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Jewish), national origin (Jewish), sex (male), religion (Jewish), age (born 1945) and in reprisal for prior protected EEO activity when: 1) On July 7, 2019, Complainant became aware he was not selected for the position of Industrial Specialist General, GS-1150-12 position in Israel; 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. 2022002634 2 2) On or around September 29, 2019, he became aware that he was not selected for the position of Industrial Property Management Specialist, GS-1103-11, at the Agency’s headquarters; and 3) On November 8, 2019, Complainant became aware that he was not selected for the position of Contract Administrator, GS-1102-12, in San Antonio, Texas. Following an investigation of the complaint, Complainant requested a hearing. The EEOC Administrative Judge assigned to the case determined that there were no genuine disputes of material fact and issued a decision without a hearing. The AJ found no discrimination. Specifically, the AJ found that, as an annuitant, Complainant was only eligible for temporary or term appointments. The positions he applied to were full-time, permanent positions. Moreover, the AJ noted that the record established that annuitants may only be rehired on an as-needed, by- name request basis in order to “met critical mission needs.” The positions Complainant applied to did not utilize this non-competitive process. Complainant appealed the decision to the Commission. In our prior decision, EEOC Appeal No. 2021005067, we agreed that summary judgment was appropriate. The Agency proffered legitimate, non-discriminatory reasons and, while Complainant may have disagreed with those reasons, he failed to establish that they were untrue or provide evidence of discriminatory or retaliatory animus. In his request for reconsideration, Complainant argues that the AJ ignored evidence that annuitants are allowed to be hired into permanent positions. He also, erroneously, contends that the prior decision used the incorrect legal standard. According to Complainant, he is “not required to show a prima facie case or demonstrate pretext” (emphasis added). According to Complainant, he was simply required to show that his “protected bases played a part in his rejection.” In order to merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989). A request for reconsideration is not merely a form of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. USPS, EEOC Request No. 05900769 (September 27, 1990). Here, Complainant simply reiterates contentions and arguments raised, or should have been raised, on appeal. 2022002634 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. 2021005067 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 August 18, 2022 Date