EEOC Appeal 2020001178

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kirby S., 1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 2020001178
Appeal No. 2019000372
Hearing No. 480-2013-00643X
Agency No. 2013-24851-FAA-06
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Kirby S. v. Dep’t of Transp., EEOC Appeal No.
2019000372 (Oct. 3, 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, a Supervisory Air Traffic Control Specialist, Support Manager Quality Control, FG-
K-2152-15, at the Agency's Southern California Terminal Radar Approach Control Facilities in
San Diego, California, filed an EEO complaint in which he alleged that the Agency had
discriminated against him on the bases of race (African-American) and color (black) when on
October 3, 2012, he learned that he was not selected for the position of Supervisory Air Traffic
Control Specialist advertised under Vacancy Announcement No. ANM-AT-12-TDM-27316.
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.

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Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). The AJ granted the Agency’s motion for summary judgment and issued a decision
finding that Complainant had not been subjected to discrimination. 	The Agency subsequently
issued a final order fully implementing the AJ’s decision.
In our appellate decision, we affirmed the Agency’s final order finding that Complainant failed to
demonstrate that the Agency’s articulated legitimate, nondiscriminatory reasons for not selecting
him were pretext for unlawful discrimination.
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), at 9-18 (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. He has
not presented any argument or evidence tending to establish the existence of either reconsideration
criterion. In a brief that extends to over one hundred pages, he attempts to relitigate his appeal on
the merits making either arguments he has raised previously or could have raised during his
original appeal.
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. 2019000372 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.

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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