Don S.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

May 16, 2018

0520180309 (E.E.O.C. May. 16, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Don S.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Request No. 0520180309

Appeal No. 0120180499

Hearing No. 480-2014-00517X

Agency No. HS-TSA-02269-2013

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Don S. v. Dep’t of Homeland Sec., EEOC Appeal No.
0120180499 (Feb. 9, 2018). 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).

On December 1, 2013, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), and color
(medium-dark brown) when, on September 13, 2013, he was issued a Letter of Reprimand for
using a cell phone while on duty.

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.
0520180309

2
Following an investigation, Complainant requested a hearing. The EEOC Administrative Judge
(AJ) assigned to the matter granted the Agency’s motion for summary judgment and issued a
decision incorporating the Agency’s statement of undisputed material facts. The AJ found that
Complainant had not been subjected to discrimination as alleged. The Agency subsequently
issued a final order fully implementing the AJ’s decision.

Complainant appealed the final order and, in Don S. v. Dep’t of Homeland Sec., EEOC Appeal
No. 0120180499 (Feb. 9, 2018), the Commission determined that the AJ properly adopted the
Agency’s statement of undisputed facts and that summary judgment in favor of the Agency was
appropriate. In particular, the Commission found that the Agency had articulated legitimate,
nondiscriminatory reasons for issuing the Letter of Reprimand which Complainant had not
rebutted as pretextual. As a result, the Commission found that Complainant had not been
subjected to discrimination as alleged.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and reiterates arguments previously raised on appeal. Complainant contends that the
Commission’s appellate decision ignored the Agency’s violations of summary judgment
standards including its untimely filing of its motion for summary judgment. Complainant argues
that he was the victim of inequity as he was denied the opportunity to respond to the Agency’s
motion for summary judgment. Further, Complainant claims that the record was not adequately
developed because he was not allowed to supplement the record with important evidence prior to
the AJ’s summary judgment decision. Accordingly, Complainant requests that the Commission
grant his request for reconsideration.

The Commission emphasizes 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), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No.
0520070736 (Aug. 20, 2007). 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.

The Commission finds that the arguments raised by Complainant in the instant request for
reconsideration were largely raised in his previous appeal, fully considered, and rejected. Here,
Complainant again argues that the Agency’s motion for summary judgment was untimely filed
and the AJ erred in granting it. Even assuming that the motion was untimely filed, Complainant
has presented no persuasive evidence that he was denied the opportunity to respond or that the
AJ abused her discretion in accepting and considering the motion. Furthermore, Complainant
has not shown that the AJ erred in finding that he failed to set forth sufficient facts showing that
there was a genuine issue still in dispute. Despite Complainant’s arguments otherwise, the
Commission finds that the AJ’s decision appropriately indicated that the record was fully
developed; that the AJ considered all of the record evidence in the light most favorable to
Complainant; and that the evidence established that Complainant failed to show that he was
subjected to discrimination as alleged.
0520180309

3
In sum, Complainant has not presented any evidence establishing that the Commission erred in
finding that the AJ properly granted summary judgment in this matter. Moreover, the
Commission finds that Complainant has not presented any evidence to support reconsideration of
the Commission’s finding that he failed to show that he was subjected to discrimination.

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. The decision in EEOC Appeal No. 0120180499 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

May 16, 2018
Date