Malcolm G.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Mar 22, 2018

0520180136 (E.E.O.C. Mar. 22, 2018)

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

Malcolm G.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security,
Agency.

Request No. 0520180136

Appeal No. 0120172042

Agency No. HS-HQ-25656-2016

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172042 (November 17, 2017).
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).

In his underlying complaint, Complainant alleged that the Agency subjected him to unlawful
race, color, sex, and reprisal discrimination, when: (1) between October 2011 and March 2012,
management notified him that his career would be managed by a coworker; (2) on March 14,
2012, management instructed him to begin teleworking on March 16, 2012; (3) on March 16,
2012, management instructed him to leave the Agency’s 650 Massachusetts Avenue facility,
based on allegations of threatening conduct by Complainant; (4) on May 24, 2012, management
issued him a letter of reprimand and a management directed letter, which reassigned his work
location to the St. Elizabeth’s facility; (5) on April 26, 2013, management informed him that his
security clearance was suspended; and (6) in July 2013, the Office of Chief Security Officer was

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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informed that Complainant intended to harm Agency employees, and revoked his security
clearance.

In its final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R. §1614.107(a)(2),
for untimely EEO counselor contact. On appeal, the Commission affirmed the dismissal, finding
that the most recent date discrimination could have occurred was on November 18, 2013, when
Complainant stated his employment ended. The Commission found that Complainant did not
initiate counselor contact until February 6, 2016, well beyond the 45-day time limit. We further
directed Complainant that, with respect to claims raised for the first time on appeal, he should
contact an EEO counselor if he wished to further pursue the matters.

In his request for reconsideration, Complainant largely reiterates arguments made, and fully
considered, on appeal. Accordingly, 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.
0120172042 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.

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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

March 22, 2018
Date