0520170454
09-21-2017
Erick K,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Erick K,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520170454
Appeal No. 0120151756
Agency No. HSCBP002312014
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120151756 (June 2, 2017). 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).
Complainant was a Supervisory Customs and Border Protection Officer at the Agency's Fabens Port of Entry in El Paso, Texas. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability, age, and reprisal when (1) on November 18, 2013, the Port Director (S2) harassed Complainant by asking for medical documentation related to his workplace injuries that Complainant had already provided and told him to resign or that he would be fired in a harassing manner; (2) on December 2, 2013, the Assistant Port Director (S1) gave Complainant a low performance appraisal, and S2 asked Complainant when he was going to retire; (3) on December 3, 3013, Complainant requested use or lose leave for December 5, 2013, to January 11, 2014, and S2 denied Complainant's request; (4) on or about December 11, 2013, S2 denied Complainant's Foreign Language Award Pay (FLAP) . Subsequently, when Complainant asked about FLAP, S2 stated in a loud and rude voice, "If I have to repeat that you are not getting FLAP, I'm going to write you up." And (5) on January 23, 2014, Complainant received conflicting opinion letters. Complainant limited his appeal to claims 3 and 4.
Our prior appellate decision affirmed the Agency's final decision that concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
In his request for reconsideration, Complainant expresses his disagreement with the previous decision and reiterates arguments he has previously made. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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.
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. 0120151756 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
September 21, 2017
__________________
Date
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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