Erich A.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Jun 30, 2020

2020002500 (E.E.O.C. Jun. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erich A.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Request No. 2020002500 Appeal No. 2019000445 Hearing No. 570-2017-00519 Agency No. HS-ICE-26736-2016 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019000445 (January 14, 2020). 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 was employed by the Agency as a Criminal Investigator, Resident Agent in Charge (RAC), GS-14, in Houston, Texas. He was subsequently promoted to the position of Assistant Special Agent in Charge (ASAC), GS-15. Complainant filed an EEO complaint alleging he was discriminated against on the bases of race (African American), age and reprisal, raising 13 claims dealing with staffing, temporary duty, non-selections, meetings, emails, and Agency polices. In his request for reconsideration, Complainant states he is focusing on claims 8, 9, and 11: 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. 2020002500 2 8. on June 26, 2016, he became aware he was not interviewed for the position of Special Agent in Charge advertised under VAN number DALOPR-1646507-MP-TRV, and later the vacancy announcement was returned unused and no selection was made; 9. on June 14, 2016, he became aware that he was not selected for the position of OPR Assistant Agent in Charge, advertised under VAN DAL-INV-1652265; and 11. on June 19, 2016, he became aware he was not selected for the position of ASAC, advertised under VAN DAL-OPR-1705815-MP-TRV. Our prior appellate decision affirmed the Equal Employment Opportunity Commission Administrative Judge’s (AJ) decision by summary judgment which found in favor of the Agency, concluding Complainant failed to prove his discrimination claims. In the decision, the AJ found that the Agency did not fill one position, and that Complainant did not show he was markedly more qualified than the selectees. In other words, Complainant did not show that the Agency’s reasons for its actions were a pretext for discrimination. In his request for reconsideration, Complainant expresses his disagreement with the previous decision and makes many of the same arguments regarding his non-selections that he made on appeal. 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. 2019000445 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. 2020002500 3 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 June 30, 2020 Date