[Redacted], Blake H., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Sep 16, 2021

Appeal No. 2020003344 (E.E.O.C. Sep. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Blake H.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Request No. 2021003383 Appeal No. 2020003344 Hearing No. 570-2019-00318X Agency No. FBI-2018-00082 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003344 (March 31, 2021). 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 employed by the Agency as a Supervisory Special Agent in Atlanta, Georgia. On January 15, 2018, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (Black) and in reprisal for prior protected EEO activity when, on December 13, 2017, he was summarily removed from employment with the Agency. 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. 2021003383 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. On February 6, 2020, the AJ notified the parties sua sponte of her intent to issue a decision without a hearing (Notice of Intent). The AJ reasoned that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s removal. Specifically, the AJ set forth that the Agency removed Complainant because “he had established a pattern of alarming behavior for which he had not shown remorse. Indeed, his repeated lack of regard for court orders exhibited what the Agency characterized as a lack of judgment, character, and fitness.”2 Notice of Intent at 3. The AJ provided the parties with an opportunity to respond to the Notice of Intent by February 21, 2020. On February 26, 2020, the AJ issued judgment in favor of the Agency for the reasons set forth in her Notice of Intent. The AJ noted that Complainant’s request for an extension to file a response to her Notice of Intent was denied and that Complainant’s February 24, 2020 response was untimely and thus not considered. On March 31, 2020, the Agency issued a final order adopting the AJ’s decision. Complainant appealed. In EEOC Appeal No, 2020003344, we affirmed the Agency’s final order adopting the AJ’s decision without a hearing finding no discrimination. We found that the AJ did not abuse her discretion by not considering Complainant’s untimely response to her Notice of Intent. Complainant filed a request for reconsideration. Complainant reiterates arguments raised below such as that the AJ erred in not considering his opposition to the AJ’s Notice of Intent. In response, the Agency asserts that Complainant’s request for reconsideration is untimely. In addition, the Agency asserts that Complainant is reiterating arguments he raised below and that OFO’s initial decision properly affirmed the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination. Assuming arguendo that Complainant’s request for reconsideration is timely, we find that our initial decision was proper. We find that initial decision correctly determined the AJ did not abuse her discretion in not considering Complainant’s untimely response to the Notice of Intent. In addition, we find that our prior decision properly found that Complainant failed to establish a material fact in dispute and that Complainant failed to establish that the Agency’s articulated reasons were pretext for discrimination and/or retaliation. We remind complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Aug. 5, 2015), Chapter 9. 2 The record reflects that Complainant was engaged in litigation due to child custody issues. 2021003383 3 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. 2020003344 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 September 16, 2021 Date