0520140023
04-10-2014
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Request No. 0520140023
Appeal No. 0120113409
Agency No. FBI200900014
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120113409 (September 14, 2013). 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(c).
BACKGROUND
In the appellate decision, Complainant claimed that the Agency harassed him on the bases of his race (African-American), national origin (African/Egyptian), age (60), and in reprisal for prior protected activity from February 2007 to December 2008, including but not limited to, derogatory and hostile comments made by his supervisor (S1), being reassigned to another squad, being directed to move his belongings to another office and receiving an "inaccurate" rating on his performance appraisal with an attached narrative containing negative allegations. The Agency issued a final agency decision (FAD) which found that Complainant failed to show that he was subjected to harassment or discrimination. The Commission affirmed the finding of no harassment and no discrimination. Specifically, we noted that there was testimony from S1 explaining her attitude towards Complainant, including the fact that she found him "creepy;" from former supervisors concerning Complainant's poor writing skills; as well as from other employees suggesting that S1's conduct towards Complainant may have in fact been tainted by race or national origin animus as well as other animosity.1
Complainant argued on appeal that nothing S1 or the Assistant Special Agent in Charge attested to was believable because they were romantically involved. However, because Complainant failed to request a hearing, the Commission found that it did not have the benefit of an AJ's credibility determination with regard to the testimony. We concluded that the weight of the evidence presented was in the Agency's favor. We found the only real incident alleged that was sufficient to render the work environment hostile was S1's conduct, as the other incidents were adequately explained, and we were not sufficiently persuaded that her conduct was based on unlawful animus towards Complainant's protected classes. While there was anecdotal evidence suggesting S1 was not comfortable with individuals unlike herself, the preponderant evidence suggested that her negative comments were motivated by resentment that Complainant had attained a high grade level without having to perform the same as others and without having to supervise. While the previous decision did not find that S1's conduct as a supervisor reflected well upon the Agency, we were not persuaded by the record that it was unlawfully motivated.
REQUEST FOR RECONSIDERATION CONTENTIONS
In Complainant's request for reconsideration, he contends among other things that S1 required him to move items out of his office without assistance which jeopardized his health, as the items were heavy and his age. Complainant also contends that based on the comments that S1 made about him he feared retaliation from S1's friends. Further, Complainant maintains that he does not understand why he would have been reassigned to another squad in light of the fact that he spoke a second language and he had the analytical skills required of his Counterterrorism (CT) position. He does not understand why the Agency was not complying with Act S1800, which required that employees' critical skills be utilized. He argues that reassigning him from CT to Cyber, violated Act S1800. As a remedy, Complainant requests that the notes submitted by S1 contained in his personnel record be taken out as they were based on the discriminatory actions of S1.
In response, the Agency maintains that Complainant's request for reconsideration should be denied as he did not meet the requirements. The Agency argues that Complainant is simply rearguing his appeal. Further, the Agency explains that Complainant's reliance on Act S1800 is inappropriate as this bill was never enacted into law and therefore is not a policy, practice, or operation of the Agency. Even if it were a policy, practice, or operation of the Agency, the Intelligence Branch does not agree that Complainant had the critical skills needed by CT as Complainant was not recognized as a CT Subject Matter Expert by anyone in the Agency. The Agency maintains that Complainant's reassignment occurred as part of a comprehensive staffing project based on the current mission of the Agency.
ANALYSIS AND FINDINGS
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. We find that Complainant has failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. With regard to Complainant's contentions in his request for reconsideration, we find that his contentions were fully addressed in the appellate decision. Moreover, we find that other than Complainant's conclusory statements he has not provided any evidence to support a granting of his request. Accordingly, the decision in EEOC Appeal No. 0120113409 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
__4/10/14________________
Date
1 Outside of Complainant's presence, S1 made a derogatory comment about an individual wearing a turban and complained about her difficulty understanding Complainant's accent.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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