[Redacted], Darin B., 1 Complainant,v.Kikolo Kijakazi, Acting Secretary, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2021003698 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darin B.,1 Complainant, v. Kikolo Kijakazi, Acting Secretary, Social Security Administration, Agency. Request No. 2023000220 Appeal No. 2021003698 Hearing Nos. 540-2018-00147X & 540-2019-00373X Agency Nos. DAL-17-0358-SSA & DAL-19-0034-SSA DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Darin B. v. Social Security Administration, EEOC Appeal No. 2021003698 (September 14, 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). 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. 3 2023000220 During the relevant time, Complainant worked for the Agency as a Claims Representative in Santa Fe, New Mexico. On March 24, 2017, and February 1, 2019, Complainant filed two formal complaints, claiming unlawful employment discrimination based on race and unlawful reprisal for prior protected activity. Specifically, Complainant claimed that in December 2016, he was not converted from the excepted service to the competitive service, resulting in being ineligible for promotions; he was subjected to harassment regarding assignments, non-selection, and performance appraisals; and he was rendered ineligible for selection to a position of Supervisory Social Insurance Specialist position because of his hiring status. Following an investigation into the claims, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The two formal complaints were consolidated for adjudication, and the AJ issued a summary judgment decision, finding no discrimination or unlawful retaliation were established. The Agency thereafter issued a final order adopting the AJ’s summary judgment decision. Complainant appealed. In EEOC Appeal No. 2021003698, the Commission affirmed the Agency’s final order adopting the AJ’s summary judgment decision. In the instant request, Complainant argues that the prior decision improperly considered an Agency appellate brief that was untimely filed. However, to the extent that an untimely brief was considered, we determine that there was sufficient evidence of record apart from the Agency’s appellate submissions to affirm the Agency’s final order implementing the AJ’s summary judgment decision. We further note Complainant’s argument that the Agency improperly interpreted a regulation regarding conversion of Agency appointments. This argument, as well as other matters raised in the instant request, either were previously raised, or could have been raised, below 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. 2021003698 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 4 2023000220 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 13, 2023 Date