U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Derrick P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency. Request No. 2023000258 Appeal No. 2021000327 Agency No. HS-ICE-25033-2016 Hearing No. 520-2010-00320X DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Derrick P. v. Department of Homeland Security, EEOC Appeal No. 2021000327 (September 15, 2022). 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 2023000258 During the relevant time, Complainant worked for the Agency as an Immigration and Customs Enforcement Mentoring Program Manager in Washington, D.C. On December 18, 2015, Complainant filed a formal complaint, claiming discrimination based on race, age, and in reprisal for prior protected activity. Complainant claimed that he was subject to numerous harassment incidents, including but not limited to not being offered feedback on an Individual Development Plan, removal from a temporary duty assignment (supervisory position), and returned to a non-supervisory position; negative narratives in performance appraisal leading to exclusion from bonuses; revocation of a telework agreement; assignment of a 2015 performance rating of “Achieved Expectations,” thereby rendering him ineligible for merit pay; and being repeatedly scolded in a harsh and demeaning manner in the presence of co-workers. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge, but withdrew the request. The Agency then issued a final decision. The Agency dismissed all claims for untimely EEO Counselor contact, with the exception of a claim regarding a 2015 performance evaluation, The Agency noted, however, that all claims would be considered as evidence of a hostile work environment. The Agency then found no discrimination, determining that Complainant did not establish he was subjected to a discriminatory hostile environment on any of the raised bases. In EEOC Appeal No. 2021000327, the Commission determined that most of the claims were properly dismissed, as discrete acts, for untimely EEO contact. The Commission also affirmed the Agency’s final decision finding no discrimination on a hostile environment claim. We note that Complainant submits arguments in the instant request which either were raised, or which could have been raised below. We expressly note Complainant’s arguments that the Agency should be sanctioned for a delay in issuing a decision, and that the investigation was inadequate. These arguments were previously raised, and addressed, in the prior decision. 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. 2021000327 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 4 2023000258 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 March 9, 2023 Date
