U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marsha L. Payton,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Request No. 2021000324 Appeal No. 2020004009 Agency No. HS-CBP-00194-2020 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020004009 (October 6, 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). On November 14, 2019, Complainant filed a formal EEO complaint based on race (Black), color (brown), religion (unspecified), national origin (U.S.A.), sex (female), age, disability, genetic information, parental status, and in reprisal for prior protected EEO activity when: 1. from January 31, 2003 through September 15, 2004, she was subjected to harassment, culminating in her removal from her position as a Management Program Specialist; and 1 The Commission typically uses pseudonyms in lieu of complainants’ real names when publishing its appellate decisions. In this instance, however, Complainant requested that her real name be used. 2021000324 2 2. on or about October 28, 2019, she was dissatisfied with the information relayed by the EEO counselor. The Agency’s dismissal of the complaint was affirmed by the Commission in our previous decision. In her request, Complainant, for the most part, reargues her assertion that she was subjected to harassment and discriminatorily removed in 2004. She also maintained that the previous decision did not address her appeal of a May 29, 2020, decision by the Merit Systems Protection Board (MSPB), which was part of her appeal submission. We find that Complainant did not provide any evidence that warrants granting her request. 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. Furthermore, a review of the MSPB’s May 29, 2020, decision (AT-4324-20-0483-I-1) indicates that Complainant’s claim that her rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) were violated when she was removed in September 2004, was dismissed on the grounds that the MSPB lacked jurisdiction. Consequently, we find that the previous decision did not err when it did not address this matter. The Commission has repeatedly held that it has no jurisdiction over the MSPB’s jurisdictional determinations; nor do we have jurisdiction over the USERRA. 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. 2020004009 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. 2021000324 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 5, 2021 Date
