U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yvette H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Request No. 2021003950 Appeal No. 2020000751 Hearing No. 540-2017-00256X Agency No. HS-ICE-27319-2016 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Yvette H. v. Dep’t of Homeland Security, EEOC Appeal No. 2020000751 (June 9, 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). During the period at issue, Complainant worked as a Legal Assistant at the Agency’s Phoenix Office of Chief Counsel in Elroy, Arizona. 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. 2021003950 2 On November 8, 2016, Complainant filed a formal EEO complaint claiming that the Agency subjected her to: 1. harassment (sexual and non-sexual) based on sex (female, transgender, bi-sexual, gender identity)2 when from March 2016 to September 2, 2016, Complainant was subjected to her co-workers’ repeated sexual, misogynistic, and ant-gay comments, and a culture of behavior that made her feel uncomfortable; and 2. discrimination based on sex when on September 2, 2016, Complainant received a Notice of Probationary Termination and her employment with the Agency was terminated effective September 2, 2016. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). However, the AJ issued a decision by summary judgment in favor of the Agency following the Agency’s unopposed motion for a decision without a hearing. Because the Agency failed to issue a final order implementing the AJ’s decision, the AJ’s decision finding no discrimination became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(j). Complainant appealed. The prior decision found that the AJ properly determined that Complainant had not established that she had been subjected to sexual or non-sexual harassment based on sex. The prior decision explained that the record supported that Complainant did not report the alleged sexual, misogynistic, and anti-gay comments. Instead, the decision explained that Complainant only reported a complaint regarding “constant socializing” in the workplace. Nevertheless, the prior decision explained that management took immediate and corrective action by speaking with the co-worker whom Complainant identified as participating in the socializing and offering to relocate Complainant to a different cubicle, which Complainant declined. The prior decision also found that the AJ properly determined that the Agency provided legitimate, non-discriminatory reasons for terminating Complainant’s employment during her probationary period. The prior decision determined that there was no evidence in the record to support that management made the decision to terminate Complainant’s employment based on Complainant’s sex or gender identity. 2 In Bostock v. Clayton Cty, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2021003950 3 In the instant request for reconsideration, Complainant submits a statement expressing disagreement with the appellate decision. However, we emphasize 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), 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. 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. 2020000751 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. 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. 2021003950 4 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 October 06, 2021 Date
