Junior M.,1 Complainant,v.Gina C. Haspel, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

2019003175 (E.E.O.C. Sep. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Junior M.,1
Complainant,

v.

Gina C. Haspel,
Director,
Central Intelligence Agency,
Agency.

Request No. 2019003175

Appeal No. 0120170488

Hearing No. 570-2014-00982X

Agency No. 13-08

DECISION ON REQUEST FOR RECONSIDERATION

On April 10, 2019, Complainant timely requested that the Equal Employment Opportunity
Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120170488
(March 6, 2019).2 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).

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.

2 In our letters to the parties acknowledging Complainant’s request for reconsideration, we
indicated Complainant filed his request for reconsideration on April 11, 2019. In his sur-reply
brief, Complainant submits a payment receipt showing that on April 10, 2019, FedEx received his
request for reconsideration for delivery to this EEOC office.
2019003175

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Complainant, a Security Protective Officer, filed an EEO complaint alleging that he was subjected
to discrimination and harassment based on his race (African-American) and reprisal for prior EEO
activity. In support of his harassment claim, Complainant alleged that between February 2010 and
December 28, 2011, he was yelled at and had items thrown at him by a coworker who sometimes
was his Officer-in-Charge (OIC); on April 29, 2010, he was given a Letter of Counseling by his
first line supervisor (S1) for tardiness; on February 22, 2012, he was given a Letter of Warning by
S1 for tardiness; he was temporarily removed from uniform status and referred to the Office of
Medical Services for a Fitness for Duty Evaluation by S1 following a May 14, 2012 verbal
altercation with S1; S1 gave him a Performance Appraisal Report (PAR) for the period of July 1,
2011 – June 30, 2012, with an overall performance rating of “Marginal”; and in October 2012, he
was placed on a Performance Improvement Plan (PIP) for the above Marginal rating. Complainant
further alleged that the Marginal rating was an independently actionable disparate treatment claim.

The Agency investigated the EEO complaint. Complainant requested a hearing before an
Administrative Judge (AJ) with the EEOC, and subsequently withdrew his request. Thereafter, at
the directive of the AJ, the Agency issued its final decision. It found no discrimination, and
Complainant appealed.

In the Commission’s previous decision, we affirmed the Agency’s finding that Complainant was
not subjected to harassment and disparate treatment based on his race and reprisal for prior EEO
activity.

Thereafter, Complainant filed his request for reconsideration, which the Agency opposes.3 In his
request for reconsideration, Complainant argues, as he did previously on appeal, that the Agency
fragmented his harassment claim by analyzing each incident individually, not holistically.

3 On May 9, 2019, the Legal Advisor with the Agency’s Office of Equal Employment Opportunity
(OEEO) filed a brief on behalf of the Agency opposing Complainant’s request for reconsideration.
On February 13, 2018, the Director of EEOC’s Office of Federal Operations (OFO) issued a
memorandum to all Federal Sector EEO Directors and officials concerning the neutrality of EEO
Directors and staff. OFO advised that some EEO Directors, officials and staff routinely sign and
submit appellate briefs to OFO on behalf of their agencies in the form of appellate briefs, letter
briefs and cover letters that ask the Commission to uphold a final agency action or final agency
decision. OFO reminded EEO Directors and officials that this advocacy on behalf of their agencies
violates both the letter and spirit of EEOC regulations and directives, which stress that an effective
EEO program must be impartial, both in appearance and in existence and reflect EEOC’s endeavor
to keep the advocacy function out of federal sector EEO offices due to their unique obligations
and responsibilities. OFO advised EEO Directors and officials that it is crucial that they and their
staff refrain from advocating or defending, on behalf of their agency, regarding a federal sector
EEO complaint before the Commission. The Agency is advised that its advocacy briefs must be
done by an advocacy arm thereof, e.g., its Office of General Counsel.
2019003175

3
As this is a request for reconsideration, what is before us is the previous decision. The Commission
did not fragment Complainant’s harassment claim. Instead, it found that he failed to establish
harassment because he did not show that the Agency’s actions were based on his protected groups.

Complainant argues that the Commission erred in the previous decision when it found there was
“no evidence” to support a finding that race had no bearing on the Agency’s actions. While it is
true the Commission used the term “no evidence”, this meant no persuasive evidence on
Complainant’s overall harassment and Marginal rating claims. This argument by Complainant
does not met the standard of showing the Commission’s appellate decision involved a clearly
erroneous interpretation of material fact or law.

On request, Complainant further argues, as he did before, that the AJ erred when she denied his
request to amend his complaint to include the denial of reasonable accommodation, and now
argues that the previous decision erred when it found the AJ’s ruling was not properly before the
Commission on appeal.

Complainant filed his request to the AJ, the first time, to amend his EEO complaint to include
denial of reasonable accommodation. The AJ denied this request because she determined that in
the exercise of her discretion it would unduly delay the proceedings in this case. The AJ found
Complainant untimely raised the amendment. After Complainant withdrew his request for a
hearing, the Agency issued its final decision. In its previous decision, the Commission found that
since Complainant should have raised his amended claim with the Agency’s EEO office while his
EEO complaint was being processed by the Agency and did not do so, and then withdrew his
request for a hearing, we would not address the matter in accordance with our longstanding policy
of not accepting new claims on appeal that should have been raised earlier. This ruling did not
involve a clearly erroneous interpretation of material fact or law.

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. 0120170488 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.
2019003175

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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 26, 2019
Date