0520160053
02-05-2016
Terrence H.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Terrence H.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Request No. 0520160053
Appeal No. 0120132831
Hearing No. 430-2012-00260X
Agency No. HSICE009912011
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120132831 (September 10, 2015). Equal Employment Opportunity Commission (EEOC or Commission) regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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).
At the time of events giving rise to the underlying complaint, Complainant worked as a Criminal Investigator, Special Agent at the Agency's Office of Investigations in Norfolk, Virginia. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African American) and/or reprisal when: (1) since November 2009, he and his spouse have been assigned to different Virginia offices; (2) subsequent to November 2009, he was made aware that S2 gave an African American employee malt liquor; (3) subsequent to November 2009, he heard about an employee referring to an African American agent as "the big Black shiny guy"; (4) subsequent to November 2009, a coworker commented she did not expect his spouse to be married to an African American man; (5) in January 2010, his theories about an "international fraudulent document organization" were dismissed and not acted upon, but six months later management pursued investigation of just such an organization; (6) between March 16, and 18, 2011, management did not "give appropriate attention" to his case involving a corrupt Agency official; management also exhibited no faith in his investigative and decision making abilities; (7) on or about March 6, 2011, he learned of a racially inappropriate photograph on SA3's personal cell phone; (8) on March 31, 2011, he was told that he and his wife could not be control and second agents on a confidential file nor could married agents be designated as the primary and second contact agents for a source; (9) on March 31, 2011, he was reassigned from Newport News, Virginia to Norfolk, Virginia; and (10) on May 20, 2011, he became aware that he was not advised of an investigation into the alleged theft of informant-related money.
Our prior appellate decision vacated the EEOC Administrative Judge's (AJ) decision by summary judgment, remanding the matter for a hearing. The decision found that there were unresolved matters of material fact which require determination through a hearing by the AJ.
In its request for reconsideration, the Agency expresses its disagreement with the previous decision, basically arguing that the AJ's decision was correct and there is no need for a hearing. 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. The Agency 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. 0120132831 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
To the extent it has not yet done so, the Agency is directed to submit a copy of the complaint file and this decision to the EEOC Hearings Unit of the Raleigh Area Office within fifteen (15) days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and that Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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.
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
February 5, 2016
__________________
Date
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.
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