Shayne B.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

2019004782 (E.E.O.C. Sep. 20, 2019)

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

Shayne B.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.

Request No. 2019004782

Appeal No. 0120180167

Hearing No. 410-2016-00362X

Agency No. HHSCDC03192015

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180167 (May 3, 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).

Complainant worked as a Distinguished Consultant, AD-0801-00, in the Agency’s Global
Tuberculosis Prevention and Control Branch in Atlanta, Georgia. Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the bases of religion
(Christian), disability, age (56), and reprisal when, since October 1, 2014, he has been subjected
to continuous harassment, including: (1) on October 1, 2014, his first line supervisor (S1) was
mocking his disability when he wrote, “Thanks [Complainant]…the hand may be the only thing

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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saving you from a tent in Liberia right now”; (2) in fall 2014, S1 told Complainant that he might
need to cancel some of his December leave to cover the Branch over the holidays, and, when he
replied that he had prior commitments related to Christmas, S1 responded, “I don’t observe
that,”; (3) as of January 26, 2015, S1 had not processed his October 24, 2014, request for an EAP
conflict resolution; (4) on February 12, 2015, S1 sent him an email stating “guys I need you to be
straight with me,” which Complainant felt was different than the way S1 treated others; (5) on
March 18, 2015, S1 gave him a memo containing derogatory, inflammatory, prejudicial, and
hurtful comments about Complainant and his ethics; (6) between April 5 and 8, 2015, S1 emailed
him, stating “[Complainant], I know you’re on TDY and likely departing soon. However, since I
know you get to ride in the front of the plane we would really appreciate it if you could” work on
an assignment during his flight, which Complainant felt mocked his disability; (7) After his
March 2015, request for EAP conflict resolution mediation, S1 was slow to process the request,
and Complainant did not receive an email until May 6, 2015; and (8) after Complainant
contacted an EEO counselor on May 13, 2015, S1 retaliated against him by continuously talking
negatively about him to peers.

Complainant initially requested a hearing, but subsequently withdrew his request. Our prior
appellate decision affirmed the Agency’s final decision that concluded that Complainant failed to
prove that the Agency subjected him to discriminatory harassment as alleged.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and makes some arguments he made previously. He reiterates facts stated in the report
of the investigation and the procedural history of the complaint. 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.

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. 0120180167 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.
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“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 20, 2019
Date