Lenny W.,1 Complainant,v.Ben Carson, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Apr 5, 2017

0520170169 (E.E.O.C. Apr. 5, 2017)

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

Lenny W.,1
Complainant,

v.

Ben Carson,
Secretary,
Department of Housing and Urban Development,
Agency.

Request No. 0520170169

Appeal No. 0120142728

Hearing No. 470-2011-00010X

Agency No. HUD-00012-2011

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested reconsideration of the decision in EEOC Appeal No. 0120142728
(December 12, 2016). EEOC 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).

Complainant filed a formal EEO complaint on February 5, 2011, alleging that the Agency
discriminated against him in reprisal for prior EEO activity when:

He was harassed resulting in a hostile work environment, denied a reasonable
accommodation, was not promoted, was suspended, and was placed in a performance
improvement plan.

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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After an investigation, Complainant was provided a copy of the investigative file, and
requested a hearing before an Equal Employment Opportunity Commission Administrative
Judge (AJ). The AJ concluded that the record did not establish that Complainant was subjected
to harassment or disparate treatment based on retaliation. The Agency issued a final order
fully implementing the AJ’s decision.

Complainant appealed the Agency’s final order to the Commission. In our prior decision, the
Commission affirmed the Agency’s finding of no discrimination. Additionally, the Commission
noted that on appeal Complainant argued that the AJ erred in not ruling on his request to
amend his complaint to address a subsequent removal action that was effective November
2011. The Commission noted the record showed that Complainant initially appealed his
removal to the Merit Systems Protection Board (MSPB), where he was entitled to raise his
claims of unlawful retaliation. The Commission determined that to the extent the AJ erred in
not addressing Complainant’s request to amend, it was harmless error because the AJ would
have denied the request because the issue was not properly in the EEOC hearing process. The
Commission noted it appeared Complainant subsequently withdrew his MSPB appeal. The
Commission stated this would not have affected the result.

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. 0120142728 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request.

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
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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

April 5, 2017
Date