Ellsworth D.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.

Equal Employment Opportunity Commission

Sep 21, 2016

0520160386 (E.E.O.C. Sep. 21, 2016)

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

Ellsworth D.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.

Request No. 0520160386

Appeal No. 0120140653

Agency No. ATF200800122

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120140653 (May 19, 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).

In the underlying Complaint, Complainant alleged that he was subjected to harassment and a
hostile work environment on the bases of race (Caucasian), sex (male), age (over 40), and in
reprisal for prior EEO activity when: (1) on May 30, 2005 and April 10, 2006, his training
requests were denied; (2) on April 26, 2006, his request for leave under the Family and
Medical Leave Act (FMLA) was denied; (3) on or about October 23, 2006, he received

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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negative and false remarks on his Fiscal Year (FY) 2006 performance appraisal; and (4) on or
about February 23, 2007 to March 2, 2007, he was subjected to increased surveillance. Our
previous decision affirmed the Agency’s decision to adopt a U.S. Equal Employment
Opportunity Commission (Commission or EEOC) Administrative Judge’s (AJ) decision to
issue a summary judgment decision in favor of the Agency. Our previous decision agreed that
assuming a prima facie case of harassment or discrimination was established, Complainant
nevertheless failed to establish that the Agency’s articulated, legitimate, non-discriminatory
reason for each employment action or incident of harassment was pretext or otherwise
motivated by discriminatory or retaliatory animus.

In his reconsideration request, Complainant fails to address the undisputed record, but rather
attempts to raise credibility issues that were not at issue in the underlying summary judgment
decision. Additionally, Complainant argues that the Commission and the AJ erred because
they did not address two incidents of alleged harassment raised by Complainant. The Agency
argues that such incidents were not raised by Complainant. Whether or not such incidents
were raised by Complainant or addressed by the Commission, the record nevertheless is devoid
of evidence of discriminatory or retaliatory animus with respect to such claims.

Accordingly, 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. 0120140653 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

September 21, 2016
Date