Morris I. Onyewuchi, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity CommissionDec 14, 2012
0520120262 (E.E.O.C. Dec. 14, 2012)

0520120262

12-14-2012

Morris I. Onyewuchi, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.


Morris I. Onyewuchi,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security

(Immigration and Customs Enforcement),

Agency.

Request No. 0520120262

Appeal No. 0120100392

Hearing No. 570-2008-00393X

Agency No. HS-07-ICE-001817

DENIAL

Complainant timely requested reconsideration of the decision in Morris I. Onyewuchi v. Department of Homeland Security, EEOC Appeal No. 0120100392 (August 2, 2011). 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(b).

In a formal complaint dated September 11, 2007, Complainant alleged that the Agency discriminated against him on the bases of race (African American), national origin (Nigeria), and in reprisal for prior EEO activity when, on April 20, 2007, the Agency notified him that he would no longer be considered for selection as the designated National Security Law (NSL) Attorney and would not attend scheduled NSL training.1

In a decision without a hearing, an EEOC Administrative Judge (AJ) found that Complainant failed to prove that the Agency discriminated against him as alleged. Specifically, the AJ determined that the new Chief of the National Security Law Division (the Chief) determined that interviews were necessary for all NSL designees so that she could assess whether their teamwork and cooperation were compatible with the designation. The AJ further determined that the Agency explained that after Complainant refused to speak with the Chief, he did not receive the designation and therefore did not have a reason to attend the training. The AJ concluded that the Agency articulated legitimate, non-discriminatory reasons for its actions, and Complainant failed to establish that there was any dispute that those reasons were a pretext for unlawful discrimination.

The previous decision affirmed the AJ decision.2 Specifically, the Commission determined that the record reflected that, when the Chief assumed her position, she continued her policy of speaking with nominees with whom she had not personally met because of the high-profile, sensitive nature of national security cases. The Commission further determined that Complainant failed to present evidence that suggests that other similarly-situated NSL designees were ultimately selected to be an NSL Attorney despite having refused to speak with the Chief prior to their appointment. With respect to the training, the Commission determined that Complainant established that a comparator was sent to training as a potential designee, but Complainant's training was withdrawn after it became clear that Complainant would not be designated as the NSL Attorney. Additionally, the Commission found that Complainant failed to prove that the comparator ever refused to speak with the Chief or otherwise behaved in a manner that would suggest unsuitability for the NSL position. Finally, the Commission concluded that Complainant's refusal to participate in the interview did not constitute protected EEO activity because his refusal to interview for a job which required good communication skills and cooperation rendered him ineffective for the job.

In his request for reconsideration, Complainant notes that he previously engaged in EEO activity when he filed an EEO complaint in 2004 regarding his non-selection for a U.S. Citizenship and Immigration Services (USCIS) Associate Area Counsel position in Dallas, Texas. Complainant maintains that one of the responsible management officials in his prior complaint (RMO1) is a friend of the Chief and married to another decision-maker (RMO2) involved in the instant complaint. Complainant argues that before the Chief assumed her position, there was no Agency policy that required anyone to interview in order to be an NSL designee or to attend NSL training. Complainant further maintains that the Chief acknowledged that RMO1 told her "some things" about Complainant that caused her to have some reservations about Complainant. Complainant also maintains that he engaged in EEO activity when he complained to management that he was being discriminated against because the Chief requested an interview with him. Complainant also maintains that his resistance to the interview was reasonable oppositional protected EEO activity to what he thought was discrimination under EEO regulations, and therefore, cannot be a legitimate basis for denying him the designation and training. The Agency requests that we deny Complainant's request for reconsideration.

We note that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.

In this case, the record reflects that the Chief informed Complainant that if he chose not to speak with her about his interest and qualifications to handle NSL cases, she would not designate him, and the appropriateness of his attendance at the upcoming NSL conference would be revisited. It is undisputed that Complainant chose not to speak with the Chief about his interest in the NSL assignment.

Complainant asserts that RMO1 told the Chief "some things" about Complainant that caused her to have some reservations about Complainant's designation. However, "some things" is a nebulous term that can encompass virtually any imaginable topic. Complainant has not shown that RMO1 relayed any information about Complainant's previous activity to the Chief. Moreover, although in another context the Chief stated that Complainant's interview performance for a USCIS position caused her to have reservations about his suitability for NSL cases, there is no evidence that these reservations were related to the fact Complainant previously engaged in EEO activity. Further, the Chief gave Complainant an opportunity to overcome her reservations by inviting him to discuss his NSL nomination with her.

With respect to Complainant's argument that there was no policy that required NSL nominees to interview, the record supports the conclusion that the Chief was vested with the authority to institute such a policy by virtue of her position. As such, the Chief acted well within her managerial discretion when she imposed the new qualification standard of interviewing NSL nominees when she assumed her position. In fact, we find it reasonable that the Chief would want to interview NSL nominees to ensure that they exhibited a temperament consistent with handling sensitive security matters. We also find it reasonable that the Chief would disqualify Complainant from NSL designation and training because he refused her offer to discuss his NSL nomination with her.

Complainant also maintains that he engaged in protected EEO activity when he refused to interview with the Chief and complained to management that he was being discriminated against because the Chief requested an interview with him. We do not find that Complainant had a reasonable basis to believe that the Chief's request for an interview with him was discriminatory in this case. In so finding, we reject Complainant's assertion that the Chief's friendship with RMO1 and marriage to RMO2 gave Complainant a reasonable belief that the Chief's request for an interview was discriminatory. Therefore, we determine that our previous decision was not clearly erroneous when it found that Complainant did not prove the Agency subjected him to unlawful discrimination. Complainant's refusal to interview with the Chief was a legitimate, non-discriminatory reason for denying him NSL designation and training, and Complainant failed to provide any evidence from which it could be reasonably concluded that the Agency's explanation was a pretext for unlawful discrimination.

Consequently, 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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120100392 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 (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

December 14, 2012

Date

1 NSL designations are considered attorney work assignments and do not constitute an advertised or competitive position. Report of Investigation (ROI), Tab 9. The NSL designation allows attorneys to obtain NSL training and work with an NSL special team when sensitive cases arise involving national security. ROI, Exhibit 8, p. 4.

2 When the Agency did not issues a final decision within 40 days of its receipt of the AJ decision, the AJ decision became the Agency's final decision by operation of law, pursuant to 29 C.F.R. � 1614.109(i).

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0520120262

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520120262