Gary K.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Dec 26, 2019

2019005995 (E.E.O.C. Dec. 26, 2019)

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

Gary K.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Request No. 2019005995

Appeal No. 0120181541

Agency No. HSICE003142014

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Gary K. v. Dept. of Homeland Security, EEOC Appeal
No. 0120181541 (Aug. 8, 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 was a Senior Intelligence Research Specialist, GS-13, at
the Agency’s Office of Homeland Security Investigations in Miami, Florida.

On March 13, 2014, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on national origin (Hispanic) and age (46) when:

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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1. on November 25, 2013, management issued Complainant a mediocre rating on his
performance appraisal.

Complainant also claimed that the Agency subjected him to discrimination and a hostile work
environment based on national origin (Hispanic), age (46), and in reprisal for prior protected
EEO activity when:

2. on November 25, 2013, management denied Complainant the opportunity to
grieve his performance appraisal;

3. on December 2, 2013, management forced Complainant to sign a Letter of
Counseling; and

4. on February 19, 2014, Complainant learned that his supervisors discussed with
others his discrimination complaint, thereby breaching the confidentially of
Complainant’s EEO complaint and other grievances.

On February 9, 2015, the Agency issued a final decision finding no discrimination. On appeal,
the Commission reversed and vacated this decision finding that the record was devoid of any
notice of transmittal of the report of investigation (“ROI”), notice of Complainant’s right to
request a hearing, or evidence that Complainant was in actual receipt of any such notices. See
Gary K. v. Dept. of Homeland Security, EEOC Appeal No. 0120151798 (Aug. 2, 2017).

Subsequently, the Agency provided Complainant a copy of the ROI and notice of right to request
a hearing before an EEOC Administrative Judge. Complainant did not respond to the Agency’s
notice. Therefore, on March 7, 2018, the Agency issued a final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

EEOC Appeal No. 0120181541 affirmed the Agency’s final decision. The decision found that
the responsible management officials (“RMOs”) articulated legitimate non-discriminatory
reasons for their actions and Complainant failed to show that that these reasons were pretextual.
Regarding claims 1 and 2, the RMOs rated Complainant as “Achieved Expectations” for fiscal
year (“FY”) 2013 due to Complainant’s removal from the role of liaison with a mailing handling
facility and because Complainant submitted reports of poor quality. With respect to claim 2,
documentation in the record supported that the RMO provided Complainant the opportunity to
contest his fiscal year 2013 performance appraisal. Regarding claim 3, the RMOs explained
that they issued the Letter of Counseling because Complainant’s behavior following receipt of
the FY 13 performance appraisal was in violation of the Code of Conduct. With respect to claim
4, that the RMOs denied having discussed Complainant’s EEO complaint or any of
Complainant’s grievances with anyone who did not need to know of Complainant’s activities.
Therefore, the decision concluded that Complainant failed to demonstrate that he was
discriminated against or subjected to a discriminatory hostile work environment as alleged.

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In the instant request for reconsideration, Complainant submits a brief expressing disagreement
with the appellate decision and reiterates arguments previously made on appeal.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), Chap.
9 § VI.A (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. 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. 0120181541 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

December 26, 2019
Date