[Redacted], Johnathon M, 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food and Nutrition Service), Agency.

Equal Employment Opportunity Commission

Mar 3, 2022

Appeal No. 2020003239 (E.E.O.C. Mar. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Johnathon M,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food and Nutrition Service), Agency. Request No. 2021005276 Appeal No. 2020003239 Hearing No. 550-2017-00486X Agency No. FNCS-2017-00256 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003239 (August 26, 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 time, Complainant worked as a Supervisory Information Technology Specialist, GS-14, in San Francisco, California. Complainant filed a formal complaint, claiming discrimination based on race, sex, and age. Complainant alleged that he was not selected for a Supervisory Information Technologist Specialist, GS-15, position. 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. 2021005276 2 After an investigation, Complainant requested a hearing. The assigned EEOC Administrative Judge (AJ) issued a decision by summary judgment concluding the evidence of record did not establish any discrimination. In so doing, the AJ found that the Agency put forth non- discriminatory explanations for its actions, including that the two selectees were chosen because they had the highest interview scores, whereas Complainant’s score tied him for fourth place. The AJ also found that Complainant had not shown the Agency’s explanation to be pretextual. The AJ noted that, while Complainant alleged he should have been selected for the position because one of the selectees was “objectively unqualified,” he presented no evidence that the Agency’s assessment of the applicants, including the selectees, as being minimally qualified was tainted by unlawful discrimination and, even if Complainant was more qualified than the selectees, as long as the Agency was not motivated by discriminatory animus, the Agency’s actions were not unlawful. The AJ also noted that the fact that Complainant had greater educational attainment or length of service does not suggest, ipso facto, that he was significantly better qualified than the selectees; an agency has greater discretion when filling management or specialized positions; and subjective criteria are frequently used in promotions to supervisory or management positions and the use of such was not necessarily an indicator of discriminatory animus. Thereafter, the Agency issued a final order implementing the AJ’s finding of no discrimination. Complainant appealed. In EEOC Appeal No. 2020003239, the Commission affirmed the Agency’s final order implementing the AJ’s finding of no discrimination. In the instant request for reconsideration, we have carefully reviewed Complainant’s arguments and determine that the matters either were raised or could have been raised below. We note that during the original appeal from the Agency’s final order, Complainant presented numerous arguments, many of which have been replicated in the instant request. We emphasize 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. 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. 2020003239 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021005276 3 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 March 3, 2022 Date