[Redacted], Emil L., 1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2019002458 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emil L.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Request No. 2021000507 Appeal No. 2019002458 Agency No. FBI201300172 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019002458 (September 22, 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). Complainant worked as a Special Agent with the Agency’s Hostage Rescue Team in Quantico, Virginia. Complainant filed two EEO complaints alleging that the Agency discriminated against him on the bases of disability and reprisal when: 1. On September 14, 2010, the Office of Inspector General (OIG) initiated a criminal complaint charging him with making false statements on a form SF-93; 2. On September 15, 2010, the OIG officers arrested, interrogated, and incarcerated him; 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. 2021000507 2 3. On September 15, 2012, the Agency suspended his Top-Secret security clearance and placed him on leave without pay; 4. On November 5, 2010, the Agency placed him on indefinite suspension because he lacked a security clearance; 5. On January 24, 2012, OIG initiated an administrative inquiry regarding his conduct; 6. On April 10, 2013, he was placed on restrictive duty; 7. On February 12, 2014, the Agency suspended him indefinitely without pay and proposed his termination from employment due to the findings from the OIG; 8. On February 14, 2014, the Agency’s Medical Mandates Evaluation Board found that he could not safely perform the essential functions of his position; and 9. In February 2014, the Agency suspended his Top-Secret security clearance access to classified information due to the investigations conducted by OIG and the Office of Professional Responsibility.2 The Agency accepted claims 5 and 8 for investigation. The other claims were dismissed, and the dismissal was upheld in Appeal No. 0120131279 (July 17, 2013), request for reconsideration denied, Request No. 0520130655 (July 31, 2014). The Agency subsequently issued a final Agency decision on the accepted claims, finding no discrimination. Our prior decision found that Complainant filed appeals with the Merit Systems Protection Board (MSPB), which addressed Complainant’s allegations of discrimination based on disability and reprisal. The MSPB ordered the Agency to cancel Complainant’s suspensions and his subsequent removal. Thus, the prior decision found that the instant complaints involved the same claims that were brought before the MSPB on appeal, and Complainant had an opportunity to litigate his claims in that forum. On this basis, Complainant’s appeal was dismissed. In his request for reconsideration, Complainant expresses his disagreement with the previous decision. 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. 2019002458 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2 Complainant was subsequently removed from his position in September 2014. 2021000507 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. 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 8, 2021 Date