[Redacted], Lilian C., 1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Jan 6, 2021

Appeal No. 2019004829 (E.E.O.C. Jan. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lilian C.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Request No. 2020004642 Appeal No. 2019004829 Hearing Nos. 570-2015-00683X; 570-2016-00261X Agency Nos. HS-CBP-01989-2014; HS-CBP-23716-2015 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Lilian C. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019004829 (Aug. 10, 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, an International Relations Specialist at the Agency's Office of International Affairs, Asia Division, in Washington, D.C., filed two EEO complaints in which she alleged that the Agency subjected her to discrimination on the bases of disability and age (over 40) when: 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. 2020004642 2 1. On July 1, 2014, the Agency denied Complainant’s request to telework for an additional two weeks to recover from foot surgery; 2. On July 16, 2014, the Agency placed Complainant on leave restriction; 3. On November 20, 2014, the Agency denied Complainant’s request for one week of advanced sick leave under the Family and Medical Leave Act; and 4. Complainant was subjected to harassment/a hostile work environment when: a. between January 6, 2015 and March 6, 2015, and after the Office of Personnel Management (OPM) indicated that employees had the option for unscheduled leave or telework, Complainant’s request to telework due to weather conditions was denied, and she was charged unscheduled Leave Without Pay (LWOP); b. on January 15, 2015, Complainant was issued a leave restriction letter; c. from February 2015 and continuing, Complainant’s arrival and departure times at work were scrutinized by management officials; d. on February 6, 2015, Complainant learned she had been accused of manipulating/falsifying her leave balances, and consequently, was interviewed by the Office of Internal Affairs; e. on or around February 27, 2015, Complainant’s reputation was disparaged when her supervisor told team members “not to talk” to Complainant because she “was trouble;” f. on or around March 2, 2015 and after OPM indicated that employees had the option for unscheduled leave or telework, Complainant’s request for unscheduled LWOP was denied and she was charged annual leave by her supervisor without first being notified; g. on or around March 9, 2015, Complainant’s supervisor refused to allow her to meet with the India Delegation at the Advanced Training Center in Harper’s Ferry, West Virginia; and h. on or around May 29, 2015, Complainant’s request for advanced sick leave and telework as a reasonable accommodation was denied, and she was instead offered three weeks of advanced sick leave and a combination of approved leave and LWOP. Following investigations of the complaints, Complainant requested hearings before an EEOC Administrative Judge (AJ). The complaints were subsequently consolidated. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding no discrimination. Specifically, the AJ concluded that the evidence showed that management’s conduct was not sufficiently severe or pervasive to create an unlawfully hostile work environment. The AJ also found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding Complainant’s reasonable accommodation claims, the AJ determined that the Agency provided Complainant an alternative accommodation of three weeks advanced sick leave and a combination of approved leave and LWOP. The AJ noted that the alternative accommodation “was effective as it fully complied with Complainant’s request to telework or take leave for the two to four-week period following her surgery.” As a result, the AJ found that Complainant was not subjected to discrimination or a hostile work environment as alleged. 2020004642 3 The Agency issued a final order fully implementing the AJ’s decision. In the appellate decision, the Commission affirmed the Agency’s final order. In the instant request for reconsideration, Complainant largely reiterates arguments made and fully considered on appeal. 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), Chap. 9 § VI.A (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. Complainant has not done so here. Complainant has not shown that the AJ erred in finding that she failed to set forth sufficient facts showing that there was a genuine issue still in dispute. The Commission finds that the AJ's decision appropriately indicated that the record was fully developed; that the AJ considered all of the record evidence in the light most favorable to Complainant; and that the evidence established that Complainant failed to show that she was subjected to discrimination as alleged. In sum, Complainant has not presented any evidence establishing that the Commission erred in finding that the AJ properly granted summary judgment in this matter. Moreover, the Commission finds that Complainant has not presented any evidence to support reconsideration of the Commission's finding that she failed to show that he was subjected to discrimination. 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. 2019004829 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. 2020004642 4 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 6, 2021 Date