[Redacted], Nicole T., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2020004121 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicole T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Request No. 2022004418 Appeal No. 2020004121 Agency No. HS-TSA-00676-2018 Hearing No. 541-2018-00132X DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Nicole T. v. Department of Homeland Security, EEOC Appeal No. 2020004121 (July 18, 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). 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. 3 2022004418 During the relevant time, Complainant worked for the Agency as a Transportation Security Specialist in Denver, Colorado. On February 23, 2018, Complainant filed a formal complaint claiming discrimination based on sex (female). Specifically, Complainant claimed that on or about December 31, 2012 and continuing, approximately three or four times per month, she was subjected to unwanted sexual advances by an Agency Supervisory Inspector; the Supervisor Inspector subjected Complainant’s work to increased scrutiny and criticized her work performance; she was issued a notice of proposed suspension for three days; a score on her annual performance evaluation was lowered; she was issued a letter of guidance and direction; the Agency issued a determination that the three-day suspension referenced above, was upheld. Following an investigation, Complainant initially requested a hearing before an EEOC Administrative Judge, but thereafter withdrew the request. The Agency issued a final decision, finding no discrimination. In EEOC Appeal No. 2020004121, the Commission affirmed the Agency’s final decision, finding no discrimination was established. In the instant request for reconsideration, Complainant raises arguments which either were addressed, or which could have been addressed, on appeal from the Agency’s final decision. We expressly note that the focus of Complainant’s request addresses alleged incidents of sexual harassment, which have already been analyzed in the prior appellate decision and found to be lacking in supporting evidence. On reconsideration, Complainant primarily points to a July 2, 2018 report on a polygraph examination determining she was “telling the truth” regarding some of her allegations of sexual harassment that occurred in 2012-2016.2 The report was from a private polygraph company hired by Complainant’s representative to support her EEO complaint. Significantly, we note that this July 2018 polygraph report was submitted as Exhibit G to Complainant’s EEO Affidavit which was made part of the Report of Investigation on her complaint. As such, the report was part of the evidence already considered by this Commission when issuing our initial appellate decision. However, it was not determined to be sufficiently persuasive evidence of a violation of Title VII. 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. 2 Two polygraphs were taken, with the initial test resulting in a “no opinion” finding. 4 2022004418 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. 2020004121 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 26, 2023 Date