Frederick A.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

May 15, 2019

2019001536 (E.E.O.C. May. 15, 2019)

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

Frederick A.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Request No. 2019001536

Appeal No. 0120171093

Hearing No. 410-2013-00056X

Agency No. 116700400985

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120171093 (November 23, 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).

Complainant was an applicant for four advertised vacancies at the Agency’s Marine Corps
Logistics Base in Albany, New Jersey. Complainant filed an EEO complaint alleging he was
discriminated against on the bases of race (African American) and color (Black) when he was
not selected for one of the positions in question.

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.
2019001536

2
In EEOC Appeal No. 0120171093, we affirmed the Agency’s final decision concluding
Complainant failed to prove his discrimination claims. Regarding his application for the position
of Sandblaster, responsible management officials provided testimony that Complainant was not
selected because he had previously been medically removed from a similar Sandblaster
position.2 The four selectees for the Sandblaster position were all African American males.
Complainant also applied for the position of Motor Vehicle Operator and Motor Vehicle
Dispatcher, but the evidence of record showed that no selections were made for these vacancy
announcements. In sum, the decision concluded Complainant failed to prove that his race or
color played any role in the decisions not to select him for the positions in question.

In his request for reconsideration, Complainant expresses his disagreement with Appeal No.
0120171093. He submits medical documentation dated July 23, 2012, stating he was fit for duty.
However, the selection processes at issue in his EEO complaint occurred several years before the
date of his medical note. Complainant asserts he had a similar medical note at the time of the
selection process for the Sandblaster position, but as stated in the previous decision, Complainant
provided no evidence that the responsible management officials were aware of the note at the
time the selection decisions were made.

We emphasize that a request for reconsideration is not a second appeal to the Commission. See
EEO MD-110, Ch. 9, § VII.A. 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. 0120171093 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.

2 Complainant had been hired as a Sandblaster by the Agency in 1997 but was later called into
active military duty and sustained injuries while deployed in Bosnia. Due to his injuries,
Complainant was removed from the Sandblaster position after a finding that he was medically
disqualified.
2019001536

3
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

May 15, 2019
Date