U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicole M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Request No. 2022002704 Appeal No. 2021004765 Hearing No. 570-2021-00006X Agency No. HS-ICE-02227-2019 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021004765 (March 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 was an Associate Legal Advisor, GS-0905-15, for the Agency’s Human Rights Violator Division in the Office of Principal Legal Advisor located in Washington, D.C. On December 5, 2019, Complainant filed a formal EEO complaint based on disability (traumatic brain injury) and in reprisal for prior protected EEO activity when, beginning May 2018 and continuing, management officials failed to engaged in the reasonable 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. 2022002704 2 accommodation interactive process and failed to provide a reasonable accommodation which would allow her to perform the essential functions of her job. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge. However, the AJ issued a decision without a hearing, finding no discrimination. Specifically, the AJ reasoned that the record established that the Agency did engage in the interactive process. Complainant requested more than a dozen accommodations, including working only three hours a day, three days a week. The Agency asserted that providing all of Complainant’s requested accommodations would have required the removal of essential job functions. The Agency did grant several of Complainant’s requests and continued to grant her Leave Without Pay following her accident. According to the AJ, when Complainant returned to work in March 2020, she stated that she could not keep up with her workload. Complainant took leave on several occasions due to her TBI symptoms and other ailments. By late July 2020, Complainant invoked full-time Family & Medical Leave Act (FMLA) leave. The AJ noted that the Agency continued to grant LWOP through mid-October 2020. When Complainant did not respond to requests for information, the Agency denied her request for further LWOP. On October 27, 2020, the AJ found, Complainant informed management that, according to her doctor, there was no accommodation that would allow her to return to duty at present and she was unable to provide a date of when she could return to full-time duty. In response, management offered to conduct a search for a reassignment. Complainant accepted the offer, but the Agency was unable to locate a vacant, funded position for her. In EEOC Appeal No. 2021004765, the Commission found that the AJ properly issued a decision by summary judgment concluding no discrimination was established. 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. Department 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. USPS, 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. USPS, EEOC Request No. 05900769 (September 27, 1990). Here, Complainant simply reiterates contentions and arguments raised in her 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. 2021004765 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2022002704 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 15, 2022 Date
