0520170615
01-18-2018
Kim S.,1 Complainant, v. Elaine C. Duke, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kim S.,1
Complainant,
v.
Elaine C. Duke,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Request No. 0520170615
Appeal No. 0120162861
Hearing No. 440-2013-00204X
Agency No. HSTSA004202013
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120162861 (August 15, 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 part-time Transportation Security Officer at the Agency's O'Hare International Airport in Chicago, Illinois. Complainant filed an EEO complaint alleging that he was subjected to discrimination on the bases of race (Caucasian), sex (male), and age when: (1) in October 2012, management did not give him the opportunity to request Family & Medical Leave Act (FMLA) leave for an on-the-job injury; (2) on October 19, 2012, management issued him a letter of counseling for unexcused absences; and (3) on October 19, 2012, management issued him leave restrictions for unexcused absences.
Our prior appellate decision affirmed the EEOC Administrative Judge's (AJ) decision by summary judgment which found in favor of the Agency, concluding Complainant failed to prove his discrimination claims. In his decision, the AJ found that it was Complainant's responsibility to request FMLA or, at the very least, indicate the leave that he requested was for the purpose of an FMLA-covered incident. Nor did Complainant show that the Agency's reasons for the letter of counseling and leave restriction letters were a pretext for discrimination.
In his request for reconsideration, Complainant expresses his disagreement with the previous decision. 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. 0120162861 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
January 18, 2018
__________________
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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