[Redacted], Brant C., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Apr 21, 2022

Appeal No. 2020003768 (E.E.O.C. Apr. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brant C.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency. Request No. 2022001356 Appeal No. 2020003768 Agency No. HS-CBP-01320-2018 Hearing No. 480-2019-00159X DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Brant C. v. Department of Homeland Security, EEOC Appeal No. 2020003768 (November 9, 2021). 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. 3 2022001356 During the relevant time, Complainant worked for the Agency as a Customs and Border Protection Officer at Los Angeles International Airport (LAX) Field Office in Los Angeles, California. On April 23, 2018, Complainant filed a formal complaint, claiming discrimination based on disability and in reprisal for prior protected activity. Complainant claimed that his request to have his body armor returned and his LAX access card renewed were denied; his request to activate his Personal Identity Verification Card was denied; he became aware that management sought another medical opinion from the Reviewing Physician who did not examine him and found him not fit for duty, and management released medical information to the Agency physician without his knowledge or consent; his selection for the Deferred Inspection Unit was denied; he was issued a letter offering him the options of (a) reassignment; (b) disability or if eligible, immediate retirement, or (c) resignation. After an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The assigned AJ issued a summary judgment decision, finding no discrimination. Thereafter, the Agency issued a final order implementing the AJ’s decision. In the prior decision, in Appeal No. 2020003768, the Commission affirmed the Agency’s final order implementing the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. In the instant request for reconsideration, Complainant through counsel argues that that the Agency failed to articulate legitimate, non-discriminatory reasons for its actions and the Commission erred in finding that Complainant failed to prove Agency explanations were pretext masking discriminatory and/or retaliatory animus. We have reviewed the arguments raised by Complainant in the instant request for reconsideration and determine that there is no reason to disturb the Commission’s prior decision. Complainant raises arguments which either were previously raised, or which could have been raised below. 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), Chap. 9 § VI.A (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. 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. 2020003768 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 4 2022001356 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 April 21, 2022 Date