Edgardo D.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Aug 28, 2019

2019003842 (E.E.O.C. Aug. 28, 2019)

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

Edgardo D.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Request No. 2019003842

Appeal No. 0120180043

Agency No. DEA-2016-01351

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180043 (May 2, 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).

Complainant worked as a Border Patrol Agent, GS-12, within the Customs and Border
Protection, in Michigan. Complainant applied for a Special Agent position with the Drug
Enforcement Agency. Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of disability (Adjustment Disorder) and reprisal when the
DEA Chief of Suitability issued a letter dated November 3, 2015, withdrawing its conditional
offer of employment due to Complainant’s use of countermeasures during polygraph
examinations.

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.
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Complainant did not request a hearing. Our prior appellate decision affirmed the Agency’s final
decision that concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. The decision found that even if Complainant established a prima facie
case of discrimination or reprisal, the Agency articulated legitimate, non-discriminatory reasons
for withdrawing Complainant’s offer of employment due to the independent conclusions of three
Special Agents and the Chief Polygrapher.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision, stating that an examiner was lying, some people were not questioned, and disputing the
findings, 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.

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. 0120180043 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.
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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

August 28, 2019
Date