Don S.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.Download PDFEqual Employment Opportunity CommissionMay 16, 20180520180309 (E.E.O.C. May. 16, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Don S.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Request No. 0520180309 Appeal No. 0120180499 Hearing No. 480-2014-00517X Agency No. HS-TSA-02269-2013 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Don S. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120180499 (Feb. 9, 2018). 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). On December 1, 2013, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and color (medium-dark brown) when, on September 13, 2013, he was issued a Letter of Reprimand for using a cell phone while on duty. 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. 0520180309 2 Following an investigation, Complainant requested a hearing. The EEOC Administrative Judge (AJ) assigned to the matter granted the Agency’s motion for summary judgment and issued a decision incorporating the Agency’s statement of undisputed material facts. The AJ found that Complainant had not been subjected to discrimination as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. Complainant appealed the final order and, in Don S. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120180499 (Feb. 9, 2018), the Commission determined that the AJ properly adopted the Agency’s statement of undisputed facts and that summary judgment in favor of the Agency was appropriate. In particular, the Commission found that the Agency had articulated legitimate, nondiscriminatory reasons for issuing the Letter of Reprimand which Complainant had not rebutted as pretextual. As a result, the Commission found that Complainant had not been subjected to discrimination as alleged. In his request for reconsideration, Complainant expresses his disagreement with the previous decision and reiterates arguments previously raised on appeal. Complainant contends that the Commission’s appellate decision ignored the Agency’s violations of summary judgment standards including its untimely filing of its motion for summary judgment. Complainant argues that he was the victim of inequity as he was denied the opportunity to respond to the Agency’s motion for summary judgment. Further, Complainant claims that the record was not adequately developed because he was not allowed to supplement the record with important evidence prior to the AJ’s summary judgment decision. Accordingly, Complainant requests that the Commission grant his request for reconsideration. The Commission emphasizes 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), 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. The Commission finds that the arguments raised by Complainant in the instant request for reconsideration were largely raised in his previous appeal, fully considered, and rejected. Here, Complainant again argues that the Agency’s motion for summary judgment was untimely filed and the AJ erred in granting it. Even assuming that the motion was untimely filed, Complainant has presented no persuasive evidence that he was denied the opportunity to respond or that the AJ abused her discretion in accepting and considering the motion. Furthermore, Complainant has not shown that the AJ erred in finding that he failed to set forth sufficient facts showing that there was a genuine issue still in dispute. Despite Complainant’s arguments otherwise, the Commission finds that the AJ’s decision appropriately indicated that the record was fully developed; that the AJ considered all of the record evidence in the light most favorable to Complainant; and that the evidence established that Complainant failed to show that he was subjected to discrimination as alleged. 0520180309 3 In sum, Complainant has not presented any evidence establishing that the Commission erred in finding that the AJ properly granted summary judgment in this matter. Moreover, the Commission finds that Complainant has not presented any evidence to support reconsideration of the Commission’s finding that he failed to show that he was subjected to discrimination. 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. 0120180499 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. 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 May 16, 2018 Date Copy with citationCopy as parenthetical citation