Vance C.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Jul 26, 2019

2019003255 (E.E.O.C. Jul. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Vance C.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Request No. 2019003255

Appeal No. 0120172181

Hearing No. 520-2016-0031X

Agency No. HSCBP022312014

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172181 (March 8, 2019). 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).

In the underlying complaint, Complainant alleged the Agency retaliated against him as the result
of a June 2013 settlement agreement in which Complainant withdrew a prior age discrimination
claim.

Complainant alleged that thereafter, between April 2014 and June 2015, management harassed
him as reflected in the following actions: declining to award him a performance bonus he had

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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received in prior years, instructing him to move equipment from one building to another,
excessively questioning him about a work ticket, disallowing his use of a legacy inventory system,
proposing a five-day suspension, and issuing a three-day suspension for not following instructions
and making disrespectful remarks.

Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision by summary judgment concluding no unlawful retaliation was established. The Agency
adopted the AJ’s decision in its final action on the matter.

Complainant appealed. This Commission’s previous decision affirmed those of the AJ and
Agency. The previous decision found that the AJ’s decision without a hearing was proper and
determined that the record did not contain evidence reflecting that the Agency had subjected
Complainant to a severe or pervasive hostile work environment or that it was illegally motivated
by retaliatory animus.

Through counsel, Complainant requests reconsideration, challenging the AJ’s decision without a
hearing and her findings. Complainant’s counsel notes that most of the Agency retaliatory
harassment began after Complainant had told a manager that he had prevailed in prior EEO
activity. Complainant stated that there had been an improper reliance upon unsworn statements
from supervisors who lacked first-hand knowledge regarding Complainant’s infractions.
Complainant contends supervision improperly disciplined him for failing to follow confusing and
contradictory instructions. Additionally, Complainant restates that the Agency’s charge of
unprofessional workplace speech was attributable to Complainant being busy and that English was
not his first language.

After closely reviewing preceding decision as well as arguments presented, we find Complainant
simply did not carry his burden of persuading, to a preponderance of evidence, that unlawful
retaliation occurred. Complainant raised, or at least should have raised, his arguments for
reconsideration during the original appeal from the Agency’s final action. 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. We disagree with Complainant’s position that the record was deficient to the degree
of a clear legal error or clear factual error. Moreover, this request did not persuade us that the prior
decision has a substantial impact upon Agency’s policies, practices, or operations.

This request failed under the criteria of 29 C.F.R. § 1614.405(c), and we deny the request. The
decision in EEOC Appeal No. 0120170981 remains in effect. Complainant has no further right to
administrative appeal on these Commission decisions.

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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

July 26, 2019
Date