Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Jul 2, 2015

05-2015-0298-0500 (E.E.O.C. Jul. 2, 2015)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Request No. 0520150298

Appeal No. 0120150057

Agency No. HSCBP180862010

DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in Complainant v. Department of
Homeland Security, EEOC Appeal No. 0120150057 (February 20, 2015). 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).
The record indicates that on December 21, 2012, the parties entered into a settlement
agreement resolving Complainant’s complaint. The settlement agreement provided, in
pertinent part, that:

(A)(3) If Complainant does not commit any misconduct that warrants discipline of a
letter of reprimand or higher before August 13, 2014 (four years from the date of the
decision letter), the Agency will thereafter cancel its two-day suspension referenced in
paragraph one of this Settlement Agreement, and substitute in its place two days of
leave without pay (LWOP).

Complainant alleged that the Agency breached the settlement agreement, described above. The
Agency, however, determined that it did not breach the settlement agreement because
Complainant was being investigated regarding his May 1, 2014 alleged misconduct.
Complainant appealed the Agency’s determination. The Commission, in its prior decision,
0520150298

2
found that the Agency had ample time to decide if the alleged May 1, 2014 misconduct
warranted disciplinary action prior to August 13, 2014, but it had not done so, and it was not
allowed to keep the subject matter “under investigation” forever. We note that as of the
Agency’s request on March 20, 2015, the Agency has not issued Complainant any disciplinary
action for the alleged May 1, 2014 misconduct.

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. 0120150057 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER
Within thirty (30) calendar days of the date this decision becomes final, the Agency shall
comply with the provisions of the settlement agreement by cancelling its two-day suspension
referenced in paragraph 1 of the agreement and, in Complainant’s personnel records,
substituting in its place two days of leave without pay (LWOP).

The Agency shall file a report of compliance with this Order as indicated in the
“Implementation” paragraph below, with a copy of the report sent to Complainant.

ATTORNEY'S FEES

(H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in
the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall
be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency --
not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within
thirty (30) calendar days of this decision becoming final. The Agency shall then process the
claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
0520150298

3
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See

29 C.F.R.
§ 1614.409.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 2, 2015