U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erick N,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Law Enforcement Training Center), Agency. Request No. 2022004910 Appeal No. 2021001030 Hearing No. 410-2016-00358X Agency No. HS-FLETC-23962-2015 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021001030 (August 17, 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 a Workforce Relations Branch Chief, GS- 0201-14, with the Department of Homeland Security, Federal Law Enforcement Training Centers (FLETC), Mission and Readiness Support Directorate, located in Glynco, Georgia. 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. 2022004910 2 Complainant filed a formal complaint, claiming discrimination and a hostile work environment based on race, color, and in reprisal for prior protected activity. Complainant made numerous allegations, including allegations relating to the non-competitive filling of vacancies and several nonselections; his not being submitted for a Commendably Outstanding Performance Award; someone entering his office when he was not present and searching his desk, cabinets, and computer without his permission; management directing staff to process awards and appraisals, despite Complainant pointing out the awards and did not meet regulatory requirements; he was excluded from meetings with management after pointing out to management that they had previously allowed an employee to be non-competitively promoted, in violation of the FLETC merit promotion plan; Human Capital Division employees failed to refer him for positions which he alleges he was qualified to be considered for non-competitively at the GS-15 level; a manager commented to him words to the effect, "Pushing the issue would be a career killer," in regards to the Complainant pointing out alleged prohibited personnel practices, merit systems violations, and discriminatory actions by a supervisor; he was excluded from meetings with management which he had previously been required to attend as Branch Chief of Workforce Relations Branch; he was not allowed to fill a vacant Workforce Relations Branch position after the position was vacated, while during the same time frame, other Branch Chiefs in Human Capital Division were allowed to fill branch vacancies quickly; a supervisor approached a FLETC Security and Emergency Management Division Chief in an accusatory tone and inquired if she had provided one of Complainant's co-workers in Workforce Relations Branch with information about the hiring of another co-worker; Complainant was not provided with his close out appraisal when he left as required by policy; management retaliated against a witness in Complainant's pending EEO case, when they tried to access a secure area in the SEM building and accused her of inappropriate conduct to discredit her; a supervisor made retaliatory comments to his staff when he stated that some FLETC employees on his staff had complained to his "boss" about him which created a chilling effect on potential witnesses and witnesses participating in the EEO process; management placed one of the witnesses in Complainant's pending EEO case in a vacant locksmith position despite the recommendation of the interview panel members; a manager made a retaliatory comment about Complainant when, in response to FLETC staff members suggesting that FLETC management should bring back the old FLETC Workforce Relations Branch because they did such a good job, he remarked that he "would have to disagree, because they were not good for management" or words to that effect. After its investigation into the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). The AJ assigned to the matter held a hearing and subsequently issued a decision concluding the evidence of record did not establish any discrimination as alleged. Thereafter, the Agency issued a final order implementing the AJ’s finding of no discrimination. Complainant appealed. In EEOC Appeal No. 2021001030, the Commission affirmed the Agency’s final order implementing the AJ’s finding of no discrimination. 2022004910 3 In the instant request for reconsideration, we have carefully reviewed Complainant’s arguments and determine that the matters either were raised or could have been raised below. We note that during the original appeal from the Agency’s final order, Complainant presented extensive arguments, many of which have been replicated in the instant request. We emphasize 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), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). 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. 2021001030 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. 2022004910 4 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 March 13, 2023 Date
