Booker P.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Sep 13, 2019

2019002951 (E.E.O.C. Sep. 13, 2019)

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

Booker P.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Request No. 2019002951

Appeal No. 2019001096

Agency No. HS-ICE-25898-2016

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Booker P. v. Dep’t of Homeland Sec., EEOC Appeal No.
2019001096 (Mar. 6, 2019). 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).

In his underlying complaint, Complainant alleged that the Agency discriminated against him and
subjected him to a hostile work environment on the bases of race (African-American) and age (66)
as evidenced by six incidents.

Following an investigation, the Agency issued a final decision after Complainant failed to request
a hearing within the regulatory timeframe. In its final decision, the Agency found that
Complainant had not proven he was subjected to discrimination or a hostile work environment as
alleged.

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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On appeal, the Commission affirmed the Agency’s finding of no discrimination on the ground that
Complainant had not proven the allegedly harassing events were motivated by discriminatory
animus.

In his request for reconsideration, Complainant reiterates the arguments he raised on appeal. He
argues that he should have been afforded a hearing before an Equal Employment Opportunity
Commission Administrative Judge but acknowledges that he did not timely request a hearing as
Commission regulations require.

The Commission emphasizes that a request for reconsideration is not a second appeal. 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. Complainant has not
done so here. Complainant fails to refute the central point of the previous decision: Complainant
did not adduce persuasive evidence that the Agency’s allegedly harassing actions were based on
Complainant’s protected classes. We find that Complainant’s arguments do not 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. Accordingly, we
find that Complainant has failed to demonstrate that the Commission should reconsider its
appellate decision.

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. 2019001096 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.
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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 13, 2019
Date