[Redacted], Terrence F., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2022001305 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrence F.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Request No. 2022003699 Appeal No. 2022001305 Agency No. CBP-01716-2020 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2022001305 (June 23, 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). For the following reasons, we DENY the request. At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, GS-12, at the Agency’s New York Field Office in New York, New York. On September 28, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (physical and mental), age (over 40), and 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. 2022003699 2 1. On March 20, 2020, Complainant learned he was scheduled to report to work onsite during the Covid-19 pandemic for four weeks, beginning March 30, 2020, when coworkers were scheduled to work onsite for only two weeks; 2. On April 1, 2020, Complainant’s supervisor denied his request to self-quarantine, requiring Complainant to use one day of sick leave after potential exposure to Covid- 19 because he was required to work onsite on March 30, 2020. Although the Agency initially accepted the claims for investigation, it later dismissed the complaint on the grounds of untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). According to the Agency, Complainant did not contact an EEO counselor until June 22, 2020, approximately 92 days and 82 days respectively, after the alleged discriminatory events. Complainant subsequently appealed the Agency’s final decision to the Commission, arguing that his complaint was not untimely because there were circumstances outside of his control that prevented him from filing in a timely manner. Specifically, Complainant attributed the untimeliness to 1) the union’s failure to respond to his requests for assistance; and 2) the emotional distress that he was under due the death of his colleague. Complainant also argued that an extension to the regulatory time limit was warranted because the Agency previously asked him to extend the time period for investigating the complaint due to Covid. On June 23, 2022, we issued an appellate decision on the merits of the complaint, which affirmed the Agency’s procedural dismissal of the complaint. In affirming the Agency, we considered Complainant’s contention regarding the union’s failure to timely assist him; however, we ultimately found that Commission caselaw clearly established that seeking the assistance of the union and/or using the Agency’s internal processes does not toll the regulatory time limit for initiating EEO contact. We also considered Complainant’s contention regarding the emotional distress that he was under due to the death of his coworker. Ultimately, we found that contention to be unpersuasive because Commission precedent clearly established that extensions cannot be granted unless the mental health difficulties rendered an individual so incapacitated to prevent him or her from meeting the regulatory time limits. Complainant filed the instant request for reconsideration in response to our unfavorable decision. In requesting reconsideration, Complainant reiterates the same two arguments that he previously raised; however, he also argues that the Commission should establish a new precedent that the 45 day time limit can be “extended to reflect the extraordinary forces” that are outside the control of complainants and agencies, such as “natural disasters, pandemics, or acts of war.” In support of such argument, Complainant points out that New York had a very high death rate in March 2020 and there were ambulances on every block with body bags. Additionally, Complainant argues that the appellate decision will have a substantial impact on the operations of the Agency. In so arguing, Complainant notes that the Agency, after initially accepting the complaint for investigation, advised him that the investigation into his complaint would be delayed due to Covid. 2022003699 3 Complainant maintains that “[s]hould the Agency be prevented by the same circumstances to fulfill its procedural timeline, then the same standard should apply to the Complainant” because “[i]f the appellate decision were upheld, it would appear that the Agency is free to operate as it sees fit…” After reviewing the previous decision and the entire record, we find that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is our decision to deny the request. In reaching this conclusion, we are mindful of the two main arguments that Complainant made on appeal and on reconsideration; however, we emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VII.A (Aug. 5, 2015). 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. As Complainant has not shown that the appellate decision clearly erred in rejecting his arguments, we see no basis to reverse the appellate decision’s determination in this regard. We also decline to consider Complainant’s request for a new precedent extending the regulatory time limit based on extraordinary forces, as we find that argument to be a variation of the two arguments that we considered and rejected on appeal. Furthermore, we find that Complainant cannot prevail on this argument because the harm resulting from the extraordinary forces was not personal to him but rather applicable to society as whole. Finally, we turn to Complainant’s argument that the appellate decision will have a substantial impact on the operations of the Agency. While we recognize that the Agency cited to Covid as a reason why the investigation into his complaint would be delayed, we ultimately fail to see how the Agency’s failure to accept the complaint would have a substantial impact on the operations of the Agency. We therefore DENY the request. The decision in EEOC Appeal No. 2022001305 remains the Commission's decision. There is no further right of administrative appeal. 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. 2022003699 4 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 29, 2022 Date