U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherman H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Request No. 2021002769 Appeal No. 2020002488 Hearing No. 520-2018-00320X Agency No. HS-CIS-01050-2017 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020002488 (March 15, 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 was employed as an Asylum Officer, GS-12, at the Agency’s USCIS Asylum Office in San Francisco, California. Complainant filed an EEO complaint alleging he was discriminated against on the bases of race (Black), national origin (Nigerian), color (black), age (66), and reprisal when: (1) on February 6, 2017, management declined to promote Complainant; and (2) on November 9, 2017, management issued Complainant an annual performance rating of “Achieved Expectations” in lieu of an “Unacceptable” rating. 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. 2021002769 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 it was undisputed that Complainant had performance issues which resulted in counseling, assignment of a mentor, and being place on a performance improvement plan (PIP). This happened before he applied for the vacant position. Because he had not been given a full opportunity to demonstrate improvement in the areas noted in his mid-point review, Complainant was issued the “Achieved Expectations” rating rather than an “Unacceptable”. Complainant did not show that the Agency’s reasons for its actions were a pretext for discrimination. In his request for reconsideration, Complainant expresses his disagreement with the previous decision, stating that he did not have performance problems, an argument he made before the AJ. We note that the AJ found that when Complainant had previously been on a PIP prior to the events at issue and several different managers had expressed concern about Complainant’s work performance. The AJ noted that the record was replete with evidence supporting the concerns regarding Complainant’s work performance, and that Complainant was resistant to feedback which differed from his own opinion. 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. 2020002488 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. 2021002769 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 June 29, 2021 Date
