0520130182
06-14-2013
William E. Yeager, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
William E. Yeager,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520130182
Appeal No. 0120112276
Hearing No. 451-2011-00021X
Agency No. HS-10-CBP-000863-1012092
DENIAL
Complainant timely requested reconsideration of the decision in William E. Yeager v. Department of Homeland Security, EEOC Appeal No. 0120112276 (November 14, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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(b).
Our previous decision affirmed the Agency's final order, which implemented the decision of EEOC Administrative Judge (AJ). The AJ, who issued a decision without a hearing, found that the Agency did not discriminate against Complainant on the basis of disability when it placed him on indefinite paid administrative leave on November 12, 2009. In our previous decision, we found that the AJ properly issued a decision without a hearing. We concluded that, despite Complainant's contentions on appeal, the record was fully developed. We also concluded that the Agency articulated a legitimate, nondiscriminatory reason for its action. In that regard, we noted that Complainant's Air Interdiction Agent (AIA) position involved piloting aircraft, Complainant sought to obtain an airman medical certificate,1 and the Federal Aviation Administration (FAA) denied the certificate because of Complainant's mental condition and use of medication. We further noted that, after Complainant underwent psychiatric and psychological evaluations, the Agency's reviewing forensic psychiatrist concluded that Complainant was not fit for duty. The Agency then placed Complainant on paid administrative leave.
In addition, our previous decision found that Complainant failed to show that the Agency's action was motivated by discrimination. We concluded that the record indicated that the Agency's interpretation of FAA requirements was not discriminatory and that there was no evidence that the Agency treated Complainant less favorably than a similarly-situated employee.2
In his request for reconsideration, Complainant asserts that the record was not fully developed and that the AJ should have found in his favor regarding his requests for discovery, interrogatories, and admissions. In addition, Complainant argues that the previous decision erroneously interpreted the Agency's medical requirements and his medical-certification qualifications. He states that he had a second-class medical certificate, initiated the process for re-issuance two months before the certificate expired, and pursued medical-recertification after the FAA refused to issue a certificate in February 2009. Further, Complainant argues that the Agency subjected him to removal actions that were motivated by animus and that the Agency did not comply with the requirements of the Office of Personnel Management. He also argues that the decision to place him on paid leave was motivated by animus and was in retaliation for his request for reasonable accommodation. Finally, Complainant argues that a finding in favor of the Agency places all employees at risk for wrongful removal and will have a substantial impact on the labor and employment practices of the Agency and other federal agencies.
In response, the Agency argues that the Commission's previous decision properly found that the Agency articulated a legitimate, nondiscriminatory reason for its actions and that Complainant failed to show that the articulated reason was pretextual. The Agency notes that this is not a retaliation or reasonable accommodation case. In addition, the Agency argues that Complainant failed to produce any evidence to support his assertion that the decision will have a substantial impact on the policies, practices, or operations of the Agency.
We remind Complainant 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous 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.
Complainant has not shown that the previous decision erroneously determined that the record was fully developed. Similarly, he has not shown that the decision erroneously interpreted the Agency's medical requirements or his certification qualifications. Complainant's assertions about his FAA medical certifications do not establish error here, where the record establishes that the Agency placed Complainant on paid administrative leave after the reviewing forensic psychiatrist determined that Complainant was not fit for duty. Further, Complainant's arguments concerning removal actions and his allegations of retaliation are not relevant to the previous decision, which addressed only whether the Agency discriminated against him on the basis of disability when it placed him on administrative leave. Finally, as the Agency noted, Complainant has offered no evidence to support his assertion that the previous decision will have a substantial impact on the Agency's policies.
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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120112276 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 14, 2013
Date
1 Although Complainant asserted that the FAA subsequently approved him for a second-class medical certificate, the AJ concluded that Complainant was required to obtain a first-class medical certificate because this was the first time that he was seeking certification as an AIA. Our previous decision noted that the AJ stated that the FAA approved the second-class medical certificate on April 14, 2009. The record, however, indicates that the FAA sent Complainant an Authorization for Special Issuance of a Medical Certificate on August 14, 2009. Report of Investigation Tab F-26. We note that the reference to April, rather than August, was harmless error.
2 The previous decision noted that, on November 2, 2009, Complainant requested a reasonable accommodation of telework to perform administrative duties. The decision also noted that "this matter is not a live issue in the instant case and Complainant does not contest that on appeal."
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0520120182
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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