U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felisha A,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Request No. 0520180497 Appeal No. 0120162314 Hearing No. 451-2014-0037X Agency No. HSCBP012552013 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120162314 (June 5, 2018). 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 worked as a GS-12 Customs and Border Protections Officer at the Agency's Presidio port of Entry facility in Presidio, Texas. Complainant filed an EEO complaint in which she alleged the Agency discriminated against her on the bases of sex (female), age, and reprisal when, in or about April 2013, the Agency did not select her for a GS-13 Supervisory Customs and Border Protection Officer position, Complainant initially requested a hearing but subsequently withdrew her request. Thereafter the Agency issued a final Agency decision concluding that Complainant failed to prove that she was discriminated against as alleged. Our prior decision found that the Agency failed to articulate a specific, clear, and individualized explanation for Complainant's non-selection. The decision found that the Agency failed to rebut the inference of discrimination created when Complainant established a prima facie case of sex and age discrimination. The decision concluded that Complainant possessed plainly superior qualifications and that the Agency's explanations for Complainant's non-selection were a pretext for discrimination based on her sex and age. In its request for reconsideration, the Agency disagrees with the previous decision. We note that the brief the Agency submitted on appeal was not considered because it was not submitted in a digital format. The Agency is apparently attempting to make similar arguments in its request. The Agency basically argues that the selectees were on the best qualified candidates certificate, which did not have specific scores, and that individual experience, skills, knowledge and performance was considered by the selecting officials. The issue of the lack of scores was addressed in the prior decision, as was the assertion that the selectees' work performance was superior to that of Complainant. 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. 0120162314 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 Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision is issued: 1. The Agency shall retroactively appoint Complainant to the position of GS-13 Supervisory Customs and Border Protection Officer, effective the date of the appointment of C2 and C3 (reportedly May 5, 2013). 2. The Agency shall pay Complainant appropriate back pay and interest for any pay Complainant lost from the date of her retroactive appointment, until the date she was actually placed into a GS-13 Supervisory Customs and Border Protection Officer position (reportedly July 27, 2014), pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address reference in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages under Title VII incurred as a result of the Agency's discriminatory actions in this matter. The Agency shall issue a final decision determining Complainant's entitlement to compensatory damages within 120 calendar days after this decision is issued. 4. The Agency shall provide eight (8) hours of in-person EEO training to all selecting, recommending, and responsible management officials in this case, including PD1, DFO, and ADP. The training shall focus on management's responsibilities to prevent age and sex discrimination, as well as reprisal under EEO laws. 5. The Agency shall consider taking appropriate disciplinary action against PD1 and DFO. 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 PD1 or DFO have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 6. The Agency shall post a notice in accordance with the Order set forth below entitled "Posting Order." 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). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Presidio Port of Entry in Presidio, Texas 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)), 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. 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 September 27, 2018 __________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 5 0520180497