Art B.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Jan 17, 2020

2020000233 (E.E.O.C. Jan. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Art B.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security, Agency. Request No. 2020000233 Appeal No. 0120181731 Hearing No. 520-2017-00582X Agency No. HS-HQ-01243-2010 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120181731 (August 29, 2019). 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 period at issue, Complainant worked for the Agency as a Transportation Security Specialist. Complainant was selected for a detail assignment as a Senior Watch Officer (SWO) at the Agency’s National Operations Center in Washington D.C. Complainant filed a formal EEO complaint claiming the Agency discriminated against him based on race when: (1) on April 7, 2010, management subjected him to harsher scrutiny than his co-workers following an aviation incident; and (2) on April 16, 2010, management removed him from his J-Band detail assignment. 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. 2020000233 2 After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ granted the Agency’s motion for summary judgment finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ found that management explained that Complainant failed to meet the requirements of his position, and Complainant did not prove the proffered explanations were pretext masking discriminatory animus. Complainant appealed. In EEOC Appeal No. 0120123143 (July 2, 2015), we found, among other matters, that there remained genuine issues of material fact that required resolution through a hearing regarding Complainant’s performance, as his performance appraisal indicated he was regarded as “exceeding expectations.” In sum, we reversed the AJ’s decision by summary judgment because there were simply too many unresolved issues which required an assessment as to the credibility of management officials, co-workers, and Complainant. The complaint was remanded for a hearing before an AJ. However, Complainant subsequently withdrew his request for a hearing and requested an Agency final decision. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.1011(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency maintained that assuming Complainant established a prima facie case of race discrimination, it articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency found that after several serious incidents, (the Denver incident, a poorly written memorandum, the forgetting of senior official’s names, and problems with his staff) Complainant was not performing as was expected. Furthermore, the Agency maintained that Complainant was not subjected to harassment, because the incidents cited were performance-based incidents that were not severe or pervasive enough to establish a hostile work environment. Complainant appealed again. In EEOC Appeal No. 0120181731 (August 29, 2019), we affirmed the Agency’s final decision. In his request for reconsideration, Complainant argues that the Agency erred finding no discrimination and that the investigation into his claims were inadequate. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. 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. To the extent that Complainant asserts the investigation was inadequate, we provided him with the opportunity to supplement the record with a hearing, but Complainant chose to withdraw from the hearing. 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. 2020000233 3 The decision in EEOC Appeal No. 0120181731 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 17, 2020 Date