U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anette B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Request No. 2022003284 Appeal No. 2021003524 Hearing No. 570-2020-01108X Agency No. HS-ICE-01508-2019 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021003524 (May 16, 2022). 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). During the relevant time, Complainant worked as an Intelligence Research Specialist, GS-0132- 14, at the Agency’s Investigations Program Office in Washington, D.C. On July 29, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for prior protected EEO activity when, on April 12, 2019, management placed Complainant on a Performance Improvement Plan. 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. 2022003284 2 Following an investigation, Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). The AJ notified the parties sua sponte of an intent to issue a decision without a hearing and provided both parties an opportunity to respond. Complainant presented arguments opposing the AJ’s notice of intent and also withdrew the bases of sex and race from her complaint. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order implementing the AJ’s finding that Complainant failed to prove discrimination as alleged. Complainant appealed the decision to the Commission. In EEOC Appeal No. 2021003524, we found that the AJ’s decision to grant summary judgment in favor of the Agency was proper because Complainant had failed to establish that there were material facts in dispute and that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact finder could not find in her favor. We concluded that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. In her request for reconsideration, Complainant argues the appellate decision in EEOC No. 2021003524 involved a clearly erroneous interpretation of material fact, because the Agency did not properly investigate all her claims. She contends that a proper investigation would show a clear discrepancy between African American females and Caucasian males in the reports section since 2013 regarding pay, promotions, adverse actions, suspensions, temporary duty assignments (TDYs), overseas assignments, attending professional meetings, and trainings. Complainant seeks comparatives and records from 2013 until the present, regarding pay raises, promotions, adverse actions, suspensions, TDYs and trainings. While Complainant makes sweeping claims of broad discrimination, and seeks years of reports to support her belief, she does not explain how this relates to the EEO complaint before us, alleging that her placement on a performance plan was retaliatory. In order to merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Dep’t. of the Air Force, EEOC Request No. 05890749 (September 28, 1989). A request for reconsideration is not merely a form of a second appeal. Regensberg v. U.S. Postal Serv., EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. U.S. Postal Serv., EEOC Request No. 05900769 (September 27, 1990). Here, Complainant simply reiterates contentions and arguments raised, or should have been raised, on appeal. 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. 2021003524 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2022003284 3 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 September 28, 2022 Date
