[Redacted], Ezra P., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Jun 29, 2021

Appeal No. 2020001556 (E.E.O.C. Jun. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ezra P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Request No. 2021002817 Appeal No. 2020001556 Hearing No. 570-2017-00038X Agency No. HS-CBP-25148-2016 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020001556 (March 17, 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). Complainant worked as an International Trade Specialist, GS-1101-9, at the Agency’s Office of International Trade in Washington, D.C. Complainant filed an EEO complaint alleging he was discriminated against on the bases of disability (traumatic brain injury) and reprisal (participation in the reasonable accommodation process) when: (1) on November 5, 2015, Complainant’s request for a reasonable accommodation was denied; and (2) on November 23, 2015, Complainant was terminated during his probationary period. 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. 2021002817 2 Our prior appellate decision affirmed the Equal Employment Opportunity Commission Administrative Judge’s (AJ) decision by summary judgment which found in favor of the Agency, concluding Complainant failed to prove his discrimination claims. In the decision, the AJ found that the Agency granted Complainant’s request for eight separate accommodations, that including mentoring, coaching on meeting deadlines, reducing work environment distractions, providing written feedback on performance, allowing uninterrupted time for completing work, providing written agendas, clarifying tasks by repeating and allowing for questions, and providing retraining when needed. Management did deny his request to audio record Senior ITC meetings. Agency witnesses explained that Complainant did not need this accommodation because there had been a decision that junior staff like Complainant would no longer be attending the meetings. To the extent Complainant argued that the Agency did not provide him a reassignment, the AJ noted that reassignment is the accommodation of last resort only where an accommodation cannot be provided to enable an employee to perform the essential functions of his position. Because the Agency provided all of the accommodations requested that allowed Complainant to perform the essential functions of his position, reassignment did not have to be considered. Finally, the AJ noted Complainant was removed due to performance deficiencies and misconduct issues. In his request for reconsideration, Complainant expresses his disagreement with the previous decision, stating that the decision did not reference the Americans with Disabilities Act or the Rehabilitation Act. We note that the AJ’s decision sets forth the relevant law under the Rehabilitation Act in detail and correctly applied it to the facts of this case. 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. 2020001556 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. 2021002817 3 “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 June 29, 2021 Date