0520170527
11-21-2017
Edgardo D,1 Complainant, v. Elaine C. Duke, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Edgardo D,1
Complainant,
v.
Elaine C. Duke,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520170527
Appeal No. 0120171108
Hearing Nos. 471-2014-00131X, 471-2015-00045X
Agency Nos. HSCBP021672013, HSCBP001762014, HSCBP015342014
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120171108 (July 5, 2017). 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).
Complainant worked as a Border Patrol Agent in Gibralter, Michigan. Complainant filed an EEO complaints alleging that he was subjected to a hostile work environment on the bases of race (Caucasian), disability, and reprisal, Complainant's claims included allegations that the Agency reassigned cases from him, threatened him with removal from a team, restricted his use of overtime and denied his leave requests, and made comments regarding union-related activities.
Our prior appellate decision affirmed the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision which granted the Agency's request for summary judgment in part and held a hearing on some claims. The AJ found in favor of the Agency, concluding Complainant failed to prove his discrimination and hostile work environment claims. In her 133 page decision, the AJ gave an exhaustive recitation of background events and addressed each claim. The AJ found that the incidents Complainant claimed were discriminatory were, in fact, not discriminatory and could not support his hostile work environment claim.
In his request for reconsideration, Complainant expresses his disagreement with the previous decision, questioning the AJ's credibility findings and disputing other findings. 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. 0120171108 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. 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
November 21, 2017
__________________
Date
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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