0520160065
03-15-2016
Nick N.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nick N.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Request No. 0520160065
Appeal No. 0120131113
Hearing No. 430-2010-00295X
Agency No. HS-10-TSA-001204
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120131113 (September 23, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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 worked as a Federal Air Marshall at the Agency's Charlotte, North Carolina, Field Office. Complainant filed a formal EEO complaint alleging that he was discriminated against on the basis of retaliation.
Our prior appellate decision affirmed the Agency's final decision finding no discrimination.
In his Request for Reconsideration, Complainant argues that the Agency erred finding no discrimination. Complainant provided extensive arguments in support of his original appeal of this matter. Complainant's arguments on his request for reconsideration encompass a variety of matters, including the assertion that in 2007, he "only had a difference between his SAC rating score and the National panel score of approximately 3%. And in fact his 2007 National score was higher than his local score...however after his equal employment activities his National panel scores began to lower. As listed from report of investigation, 2007 National panel score of 83%, then 2008 National panel score of 17 or 34% and 2009 National panel score of 14 or 28%. As one can see from the records the Appellant lost over 50% from his National promotional panel scores once he became involved with the equal employment opportunity process at the Agency."
Further, Complainant argues that there no evidence in the record indicating other employees' promotional scores "being lower to such an extent." However, Complainant on his request to reconsider primarily focuses on the substance of the finding of no discrimination, with arguments that clearly had been raised, or certainly could have been raised, during the original appeal. In this regard, 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. 0120131113 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
March 15, 2016
__________________
Date
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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