EEOC Appeal 2020001731

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bryce M., 1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Railroad Administration),
Agency.
Request No. 2020001731
Appeal No. 0120182449
Agency No. 201626625FRA02
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120182449 (November 8, 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).
During the relevant time, Complainant worked as a Senior Project Manager, GS-15, in the
Agency’s Railroad System Oversight Program Division of the Office of Railroad Safety, Region
6, located in Kansas City, Missouri. In September 2015, Complainant applied for a Supervisory
Transportation Specialist position. When he was not selected for the position, Complainant filed
an EEO complaint based on race (Caucasian) and age (66).
Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). While the matter was pending before an AJ, the Agency filed a motion for summary
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.

2020001731	2
judgment. 	However, even after the parties agreed to extend the deadlines for responses,
Complainant failed to file an opposition. On May 31, 2018, the AJ granted the motion.
The AJ issued a decision finding no discrimination. 	According to the AJ, the selection panel,
comprised of a Selecting Official and two panel members, ranked Complainant fourth out of nine
candidates. The committee members found that Complainant’s responses were incomplete and he
drifted to unrelated subjects. According to the interview panel, the Selectee demonstrated a vision
for taking the organization forward, answered questions readily, was knowledgeable in many
areas, and had current technical skills. The AJ found that Complainant did not show the Agency’s
proffered legitimate, non-discriminatory reasons were pretextual. 	Complainant did not present
any evidence of discriminatory animus toward his race or age. The Agency issued a decision fully
implementing the AJ ‘s decision. Complainant appealed the decision to the Commission.
On appeal, Complainant argued that the AJ improperly referred to unsworn Agency answers, he
was more qualified because he had held a variety of roles for sixteen years, and the Selecting
Official did not provide him with a rational explanation for the non-selection.
In our prior decision, we determined that summary judgment was appropriate. See Complainant v.
Dep’t of Transportation, EEOC Appeal No. 0120182449 (Nov. 8, 2019). Further, Complainant
failed to meet his burden of showing pretext. See id. While Complainant was highly qualified, the
record reflected that Selectee was as well. See id. Complainant did not dispute that both panel
members independently ranked Complainant third and fifth, and did not provide any evidence that
the Selecting Official’s decision was motivated by discriminatory animus. See id.
In his request for reconsideration, Complainant reiterates his belief that summary judgment was
inappropriate. 	Specifically, he argues that the Commission’s “description of [the Selectee’s]
experience and judging its content in making a qualification determination is just the kind of
determination that summary judgment standards prohibit.” According to Complainant neither the
AJ nor the appellate decision followed the proper standards in evaluating summary judgment.
The Agency, in its response, highlights that Complainant, who was represented by counsel, did
not file an opposition to the summary judgment motion. Complainant’s request does not meet the
criteria for granting reconsideration, argues the Agency. The Agency asserts that Complainant’s
contention that he is the superior candidate is not an erroneous misinterpretation of material fact
or law, but is merely a second attempt at an appeal. According to the Agency, Complainant now
“belatedly attempts to make arguments he should have made at the summary judgment stage.”
Moreover, Complainant’s conclusory assertion that he is clearly superior due to his additional
years of experience, was previously considered. The Agency notes that in its summary judgment
motion it acknowledged Complainant’s additional years of experience, as did the Commission on
appeal, but it also noted that the length of experience does not necessarily mean the individual is
better qualified.
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) (rev. Aug. 5, 2015),

2020001731	3
at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007).
We find that Complainant is simply attempting to raise arguments and evidence which were
previously, or could have been, raised on appeal. In describing Complainant’s qualifications, in
our prior decision, the Commission did not make a determination regarding a genuine issue of
material fact. The Commission acknowledged Complainant’s assertion that he had more years of
experience than the Selectee. Nonetheless, this factor alone did not make Complainant a vastly
superior candidate. While Complainant may believe that the interviews should have been given
less weight, this is not indicative of discrimination. Complainant has not shown any evidence that
the interview committee’s conclusions were false and motivated by discriminatory animus.
Additionally, we agree with the Agency that the appropriate time for Complainant to challenge its
motion for summary judgment was while the matter was pending before the AJ. The Complainant,
however, chose not to do so.
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. 0120182449 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. The court has the sole
discretion to grant or deny these types of requests.

2020001731	4
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 31, 2020
Date