Kasi J.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Nov 16, 2020

2020004630 (E.E.O.C. Nov. 16, 2020)

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

Kasi J.,1
Complainant,

v.

Chad F. Wolf,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Request No. 2020004630

Appeal No. 2019004217

Hearing No. 5702014-00053X

Agency Nos. HS-ICE-23290-2012, HS-ICE-01376-2014

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Kasi J. v. Dep’t of Homeland Sec., EEOC Appeal No.
2019004217 (Aug. 10, 2020). 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, a Management and Program Analyst at the Agency’s facility in Washington, D.C.,
filed an EEO complaint on December 13, 2012, wherein she claimed that she was subjected to
discrimination and a hostile work environment on the bases of her national origin (Hispanic), age,
disability, and in reprisal for her prior protected EEO activity when the Supervisory Special Agent,
Office of Professional Responsibility (OPR), Joint Intake Center (JIC) subjected her to the
following acts:

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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1. On June 28, 2012, the Supervisory Special Agent OPR-JIC took away Complainant’s
duties and responsibilities and accused her of not following instructions;

2. On October 4, and June 5, 2012, the Supervisory Special Agent OPR-JIC threatened to
place Complainant on a performance improvement plan because her work performance
was substandard;

3. On October 3, September 25, August 14, June 27 and June 22, 2012, the Supervisory
Special Agent OPR-JIC told Complainant that her grammar and formatting for the
Report of Investigations were not up to his standard;

4. On November 7, 2012, the Supervisory Special Agent OPR-JIC gave Complainant a
“0” (zero) rating on her Employee Performance Plan and Appraisal Form;

5. On June 17, 2013, Complainant was placed on a 10-day suspension;

6. A rating of “Unacceptable” performance in 2013;

7. The issuance of a performance improvement plan;

8. The extension of a performance improvement plan;

9. The denial of a promotion and within-grade increase;

10. Threats by Complainant’s Supervisor;

11. Not being allowed to attend meetings;

12. Denial of telework;

13. Being banned from Customs and Border Patrol offices in the Ronald Reagan Building;
and

14. Continued criticism and rejection of Complainant’s work product where there are only
minor or no grammatical mistakes.

On September 8, 2014, Complainant filed a second formal complaint wherein she claimed that she
was subjected to discrimination and a hostile work environment on the bases of her race (not
specified), national origin (Hispanic), color (brown), sex (female), age, disability, and in reprisal
for her prior EEO activity when:

1. From April 17, 2014 until Complainant’s termination, management failed to provide
her with a reasonable accommodation by denying her request to adjust her duties,
transfer to another division and participate in training and educational programs; and
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2. On July 8, 2014, the Assistant Director of the OPR issued a decision removing
Complainant from federal service, effective July 10, 2014, for unacceptable
performance.

The Agency consolidated both complaints and conducted an investigation. Complainant
subsequently requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to
the matter granted the Agency’s Motion for Summary Judgment and issued a decision without a
hearing finding that Complainant was not subjected to discrimination or reprisal as alleged. The
Agency then issued a final order wherein it fully implemented the AJ’s decision. On appeal, the
Commission affirmed the Agency’s final order. We observed that even construing any inferences
raised by the undisputed facts in Complainant’s favor, a reasonable factfinder could not find in
Complainant’s favor. As a result, the Commission found that Complainant was not subjected to
discrimination, reprisal, or a hostile work environment.

The Commission emphasizes that a request for reconsideration is not a second appeal. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18
(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.

The Commission finds that the arguments raised by Complainant in the instant request for
reconsideration were largely raised in his previous appeal, fully considered, and
rejected. Complainant has not shown that the AJ erred in finding that he failed to set forth
sufficient facts showing that there was a genuine issue still in dispute. The Commission finds that
the AJ’s decision appropriately indicated that the record was fully developed; that the AJ
considered all of the record evidence in the light most favorable to Complainant; and that the
evidence established that Complainant failed to show that she was subjected to discrimination as
alleged. In sum, Complainant has not presented any evidence establishing that the Commission
erred in finding that the AJ properly granted summary judgment in this matter. Moreover, the
Commission finds that Complainant has not presented any evidence to support reconsideration of
the Commission’s finding that she failed to show that she was subjected to discrimination, reprisal,
or a hostile work environment.

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. 2019004217 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

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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

November 16, 2020
Date