U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * ERWIN B.,1 COMPLAINANT, v. ELAINE C. DUKE, ACTING SECRETARY, DEPARTMENT OF HOMELAND SECURITY (TRANSPORTATION SECURITY ADMINISTRATION), AGENCY. Request No 0520170446 Appeal No. 0120151276 Agency No. HS-TSA-01889-2013 November 3, 2017 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Erwin B. v. Dep't of Homeland Sec., EEOC Appeal No. 0120151276 (May 15, 2017). 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 December 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic), disability, and age (57) when: 1. On an unspecified date in 2010, Complainant's supervisor accused him of lying; 2. on an unspecified date in 2011, Complainant's supervisor rated him as "Does Not Meet Standards;" 3. During a March 2012 workshop, Complainant's supervisor introduced everyone in the room, except for Complainant; 4. In or around July 2012, Complainant's supervisor initiated an unwarranted investigation into a conversation Complainant had with a co-worker about a plant; 5. In or around March 2013, Complainant was issued a Letter of Counseling for unprofessional conduct; 6. In or around May 2013, Complainant's supervisor issued him a three-day suspension for kicking an empty box and allegedly not following call-in procedures; and 7. On or about July 16, 2013, Complainant's supervisor issued him a Letter of Counseling for missing a duty call. Following an investigation, Complainant requested that the Agency issue a final Agency decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency concluded that Complainant failed to prove that management subjected him to discrimination as alleged. Complainant appealed and, in Erwin B. v. Dep't of Homeland Sec., EEOC Appeal No. 0120151276 (May 15, 2017), the Commission affirmed the Agency's finding of no discrimination as to claims (1) -- (4) and (6), but reversed the Agency's finding of no discrimination as to claims (5) and (7). With respect to claim (5), the Commission found that the management official's reason for issuing the Letter of Counseling was pretextual as the evidence showed that he lacked uniformity in how he issued discipline. Regarding claim (7), the Commission determined that the disciplinary action at issue was disproportionate to Complainant's action. Consequently, the Commission concluded that claims (5) and (7) were motivated by racial discriminatory animus and remanded the matter for remedial action. In its request for reconsideration, the Agency expresses its disagreement with the previous decision and reiterates arguments previously raised during the appeal. More specifically, the Agency contends that the actions at issue did not render Complainant aggrieved as the Letters of Counseling were non-disciplinary and not placed in his personnel file. Additionally, the Agency argues that Complainant is not entitled to relief on either claim. 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. The Commission finds that the Agency has not demonstrated that the previous 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. As such, the Agency has not put forth any persuasive arguments to support granting the request for reconsideration. 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. 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 slightly modified and set forth below. The modified language is contained in provisions (3), (4), and (5) in the Order below. ORDER The Agency is ordered to take the following remedial action: 1. Rescind the June 27, 2012 and the July 16, 2013 Letters of Counseling referenced in claims (5) and (7). If still present in Complainant's personnel file, remove any and all reference to these Letters of Counseling. 2. If either of the June 27, 2012 and the July 16, 2013 Letters of Counseling was used in later progressive disciplinary actions, adjust such actions as if the Letters did not exist. 3. Within 90 calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation into Complainant's entitlement to compensatory damages and determine the amount of compensatory damages to which Complainant is entitled. The Agency shall pay Complainant the determined amount of compensatory damages within 30 calendar days of the date of the determination. 4. Within 90 calendar days of the date this decision is issued, the Agency shall provide eight hours of in-person or interactive training to the Assistant Director regarding his responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency's obligations under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 5. Within 60 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the Assistant Director. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the Assistant Director has left the Agency's employ, the Agency shall furnish documentation of their departure date(s). The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). POSTING ORDER (G0617) The Agency is ordered to post at its Sacramento International Airport in Sacramento, California facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Q0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 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 Director Office of Federal Operations Footnotes 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.