U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
William G.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Request No. 2020001087
Appeal No. 0120180982
Hearing No. 531-2015-00208X
Agency No. HHSFDACVM07311F
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in William G. v. Dep’t of Health and Human Servs., EEOC
Appeal No. 0120180982 (Sept. 13, 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 was an applicant for a Social Science Analyst (Organizational Development)
position, GS-12/13, at the Agency’s Center for Veterinary Medicine in Rockville, Maryland.
Complainant filed an EEO complaint in which he alleged that the Agency discriminated against
him based on sex (male) and age (YOB: 1952) when, on November 24, 2010, Complainant
discovered that he was not selected for the Social Science Analyst (Organizational Development)
position advertised under Job Announcement Number: HHS-FDA-04-2011-0005.
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.
20200010872
Following the investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). The AJ assigned to the matter granted summary judgment in favor of the Agency and
issued a decision finding that Complainant had not been subjected to discrimination as alleged.
The Agency subsequently issued a final order fully implementing the AJ’s decision.
In the appellate decision, the Commission affirmed the final order. Initially, the Commission
found support for the Agency’s argument that Complainant was collaterally estopped from arguing
that he was qualified for the position at issue. Specifically, Complainant litigated the issue of his
qualifications before the Merit Systems Protection Board (MSPB), which found that Complainant
was entitled to a 10-point preference. After the Agency restructured its ranking of the applicants,
the Agency still found Complainant unqualified for the position. Complainant appealed the
Agency’s decision to the MSPB, which affirmed the Agency. As such, Complainant could not re-
litigate his qualifications in the EEO forum. Next, the Commission found that the Agency
articulated legitimate, non-discriminatory reasons for not selecting Complainant. More
specifically, even with the 10-point preference, Complainant did not possess other necessary
qualifications for the position. The Commission concluded that Complainant failed to show that
the Agency’s reasons were pretext for unlawful discrimination. As a result, the Commission found
that Complainant was not subjected to discrimination as alleged.
In the instant request for reconsideration, Complainant expresses his disagreement with the prior
decision and argues that the prior decision contains several misstatements of fact. Complainant
contends that he, however, cannot determine what these misstatements are because the
Commission did not include citations to the record in its decision. Complainant further raises, for
the first time, issues with the record.
The Commission notes that new evidence generally will not be accepted in a request for
reconsideration. See Houser v. Dep't of Homeland Sec., EEOC Request No. 0520110548 (Oct. 7,
2011) (citing Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110) (Aug. 5, 2015)). Further, the Commission emphasizes that a request for
reconsideration is not a second appeal to the Commission. EEO MD-110, at 9-18; 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. Complainant has not demonstrated
that the Commission’s prior decision involved a clearly erroneous interpretation of fact or law.
Accordingly, Complainant has not presented any persuasive evidence to support reconsideration
of the Commission’s 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. 0120180982 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.
20200010873
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 24, 2020
Date
