U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chanelle B.,1 Complainant, v. Pete Gaynor, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Request No. 2021001064 Appeal No. 2019005027 Hearing No. 570-2018-00003X Agency No. HS-ICE-27076-2016 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Chanelle B. v. Department of Homeland Security, EEOC Appeal No. 2019005027 (November 4, 2020). 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 her underlying complaint, Complainant alleged that the Agency discriminated against her on the bases of sex (female) and age (mid to late 50s) when: 1. From August 12, 2012, and continuing, she has been paid less as a GS-0905-14, Associate Chief Counsel than her similarly situated coworkers because she was hired under the Full 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. 2021001064 2 Service Model (“FSLM”), in which GS-14 is the highest level available and resulted in Complainant performing the same duties requiring the same skill, effort, and responsibility under similar working conditions as GS-0905-15 Associate Chief Counsel attorneys within the Office of Principal Legal Advisor. 2. On July 14, 2016, Complainant became aware that an FSLM Attorney was selected for a GS-0905-15 position, and Complainant had been told by Field Legal Operations (“FLO”) Management that in order to obtain a GS-0905-15 position, she would need to compete with field immigration attorneys for any announced “senior attorney” positions in Chief Counsel offices. No other FLO employment attorney currently under the FSLM has been required to compete with immigration attorneys in order to obtain a GS-0905-15 position, and such positions have been offered to younger attorneys hired under the FSLM. 3. Whether Complainant was discriminated against on the basis of age, when, on June 25, 2014, an internal vacancy for an FLO Employment Attorney position with Dallas OCC with a career ladder from grades GS-11 to GS-15 was announced and awarded to one of her colleagues at the GS-15 level, and FLO Management could not explain why it listed the FLO Attorney position at a GS-15 level. Following an investigation, Complainant requested a hearing on her complaint. An EEOC Administrative Judge (AJ) issued a decision without a hearing finding Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency issued a final order fully implementing the AJ’s decision. Complainant appealed the Agency’s final order. In our previous decision, we affirmed the Agency’s final order finding no discrimination. In her request for reconsideration, Complainant reiterates numerous arguments she previously raised in her 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) (Aug. 5, 2015), at 9-18; 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. 2019005027 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021001064 3 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the civil action will terminate the administrative processing of your complaint. 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 January 13, 2021 Date
