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

Equal Employment Opportunity Commission

Jun 15, 2018

0520180303 (E.E.O.C. Jun. 15, 2018)

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

Michael M.,1
Complainant,

v.

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

Request No. 0520180303

Appeal No. 0120162744

Hearing No. 440-2013-00042X

Agency No. HSTSA215742012

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120162744 (March 15, 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).

In his underlying complaint, Complainant alleged that the Agency subjected him to unlawful
race, national origin, color, and reprisal discrimination when: (1) on March 18, 2011,
management issued him a letter of counseling (LOC) ; (2) on July 7, 2011, management issued
him a LOC; (3) on July 28, 2011, management denied his request to have his performance
accountability and standard system (PASS) rater officially changed; (4) on September 24, 2011,
management issued him an unfairly low PASS score; (5) on November 4, 2011, he discovered

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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that the March 18 LOC was still in his file although he had been told it was removed; (6) on
November 4, 2011, management issued him a letter of guidance and direction; (7) on November
19, 2011, management asked him to come into work on an approved leave day and required him
to take alcohol and drug tests; (8) on November 25, 2011, his supervisor refused to answer his
questions regarding why the March 18 LOC remained in his file; (9) on February 3 and 6, 2012,
upper management denied his request to have his PASS score changed; and (10) on February 8,
2012, management issued him a notice of proposed 14-day suspension, which he began serving
on March 18, 2012. Following an investigation, Complainant requested a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ assigned to the
case issued a decision without a hearing finding no discrimination. The Agency’s final order
adopted the AJ’s decision and on appeal, the Commission affirmed the Agency’s final order.
Specifically, we found that Complainant failed to show that any of the actions alleged were
motivated by discriminatory or retaliatory animus.

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.
0120162744 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

June 15, 2018
Date