0520140133
06-13-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520140133
Appeal No. 0120132461
Agency No. HS-CBP-00527-2013
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120132461 (November 5, 2013). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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).
In a formal complaint, Complainant alleged that, on November 8, 2012, the Director of Preclearance Operations, Office of Field Operations, issued Complainant a notice that informed him that he was one of 18 employees covered by a recent Federal Labor Relations Authority (FLRA) decision and, in accordance with the Memorandum of Understanding (MOU), he could remain in his current pre-clearance location for up to 14 years (seven successive two-year terms).
On May 9, 2013, the Agency issued a final decision dismissing the formal complaint for failure to state a claim. The Agency reasoned that, on November 8, 2012, Complainant was notified that he was covered by an FLRA decision that determined that he could remain in his current preclearance location for up to fourteen years. After that time, Complainant would be subject to a rotation from Canada to the United States. The Agency concluded that Complainant's claim was "highly speculative and not sufficient to establish a present harm" because there was no evidence that his rotation was ever effectuated. Alternatively, the Agency found that the complaint was a collateral attack on the FLRA decision.
In our previous decision, the Commission affirmed the Agency's dismissal. Specifically, the Commission determined that the Agency was permitted to convert appointed employees to competitive service, and that all competitive service employees in preclearance operations are required to rotate every two years. The Commission noted that the union challenged the decision, and an arbitrator ruled that the affected employees could remain in their duty locations for up to fourteen years. The Commission found that Complainant's complaint challenged the arbitrator's decision, and as such, constituted an impermissible collateral attack on another proceeding.
In his request for reconsideration, Complainant states that he does not believe that the Commission "clearly erroneously interpreted the facts," but "may have misunderstood the points that I have made, which brought about the wrong decision." Complainant maintains that he should not be subject to rotation because such an action violates the terms of an agreement and a sustained grievance decision.
Upon review, find that Complainant's reconsideration arguments are also arguments that challenge the arbitrator's decision, and as such, are an impermissible attack on another proceeding. We further note that 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. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
Accordingly, 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. 0120132461 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 13, 2014
Date
2
0520140133
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140133