U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jimmy C.,1 Complainant, v. David Pekoske, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Request No. 2021000642 Appeal No. 2020004043 Agency No. HS-TSA-01128-2018 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Jimmy C. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020004043 (October 1, 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, a Transportation Security Officer at Washington Reagan National Airport in Arlington, Virginia, filed an EEO complaint alleging that the Agency subjected him to unlawful discrimination on the bases of his race (African-American), color (Black), sex (male) and in reprisal for prior protected EEO activity when, between November 2016 and November 2017, he was subjected to a hostile work environment that culminated in his termination 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. 2021000642 2 Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter, however, dismissed the complaint for untimely EEO Counselor contact. The Agency issued a final order fully implementing the AJ’s decision. On appeal, the Commission affirmed the dismissal of the complaint, finding that Complainant had constructive knowledge of the 45-day limitation period for timely initiating EEO counselor contact. The Commission also found that Complainant had a reasonable suspicion of discrimination more than 45 days prior to his initial contact with an EEO counselor. In his request for reconsideration, Complainant argues that his failure to timely contact an EEO counselor should be excused because the Agency accepted his complaint, conducted an investigation and only later dismissed the complaint when it was directed to do so by the AJ. Complainant’s position is not well taken. The initial acceptance of the complaint by the Agency does not preclude later dismissal by an Administrative Judge. That option is specifically provided for by the Commission’s regulations. See 29 C.F.R. §1614.109(b). (“Administrative judges may dismiss complaints pursuant to § 1614.107, on their own initiative, after notice to the parties, or upon an agency's motion to dismiss a complaint.”) The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Aug. 5, 2015); 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. We find that Complainant’s arguments do not 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. Accordingly, we find that Complainant has failed to demonstrate that the Commission should reconsider its appellate decision. 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. 2020004043 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. 2021000642 3 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 27, 2021 Date
