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

Equal Employment Opportunity Commission

Sep 26, 2022

Appeal No. 2021004902 (E.E.O.C. Sep. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Riley G.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Request No. 2022002889 Appeal No. 2021004902 Hearing Nos. 570-2019-01343X; 570-2020-00777X Agency Nos. HHS-HQ-00582-2018; HS-HQ-01617-2019 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021004902 (March 28, 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 Contract Specialist, GS-12, at the Agency’s Procurement Operations in Washington, D.C. Complainant filed two complaints, alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Black/African-American), sex (male), disability (speech impediment), age (born 1955), and in reprisal for prior protected EEO activity when: 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. 2022002889 2 1. on October 25, 2017, the Agency has systematically refused to assign Complainant complex procurement opportunities to be eligible for promotion to a GS-13; 2. on an unspecified date, the Agency placed Complainant on a Performance Improvement Plan (PIP)2; 3. on October 27, 2017, the Agency lowered the rating on Complainant’s fiscal year 2017 annual performance appraisal; 4. on an unspecified date, the Agency failed to promote Complainant to a GS-13; 5. on unspecified dates, Complainant was the only employee required to attend bi- weekly workload meetings with his supervisor; 6. on unspecified dates, the Agency held Complainant’s workload to a higher standard than his colleagues’ workload; and 7. in April 2019, Complainant was counseled by an Associate Director for not attending regularly scheduled meetings. The Agency investigated the complaints and provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ consolidated the complaints for processing. Thereafter, both parties filed Motions for Summary Judgment. The AJ agreed that there were no material facts in dispute. On July 8, 2021, the AJ issued a decision in favor of the Agency. The AJ found that Complainant was not subjected to discrimination or a hostile work environment because Complainant failed to show that his protected classes played a role in the Agency’s actions. To illustrate this point, the AJ pointed to Complainant’s admission that he did not believe that his race, gender, age, or disability played a role in his 2017 performance rating or in management’s decision to counsel him for missing required meetings. Complainant appealed the decision to the Commission’s Office of Federal Operations. In EEOC Appeal No. 2021004902, we found that the AJ properly granted the Agency’s motion for summary judgment. We agreed with the AJ’s conclusion that Complainant failed to show that he was subjected to discrimination. Further, our prior decision found that alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment and that Complainant’s allegations related to his job performance. We noted that Complainant had acknowledged his issues with job performance, which did not merit an increase in the complexity of his work or a promotion. 2The AJ dismissed claim 2 for untimely EEO Counselor contact. Complainant raised no challenges regarding this matter on appeal and in EEOC Appeal No. 2021004902 we found no basis to disturb the dismissal. 2022002889 3 The record reflected that management required Complainant to attend biweekly meetings to help improve his performance, and that the meetings were later discontinued at Complainant’s request. Complainant did not meet his burden in showing that the Agency’s legitimate non- discriminatory reasons were pretext for discriminatory animus. 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. §1614.405(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 argues that the Commission should reconsider the previous decision because the Agency failed to “produce all the requested” documentation and “no investigation was conducted.” It is not clear which documentation Complainant is referring to. The record contains several documents that were produced during discovery including a Report of Investigation, which demonstrates that his claims were investigated. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria under 29 C.F.R. §1614.405(c). Therefore, Complainant’s request is DENIED. The decision in EEOC Appeal No. 2021004902 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. 2022002889 4 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 26, 2022 Date