Margaret L.,1 Complainant,v.Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Jan 31, 2018

0520180041 (E.E.O.C. Jan. 31, 2018)

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

Margaret L.,1
Complainant,

v.

Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.

Request No. 0520180041

Appeal No. 0120171692

Hearing No. 570-2017-00665X

Agency No. PI-04-08

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120171692 (September 8, 2017).
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).

On August 17, 2004, Complainant filed an EEO Complaint, identified as Agency No. PI-04-08,
alleging discrimination on the bases of age (64), disability, and in reprisal for prior EEO activity.
This complaint was consolidated with an earlier filed complaint (Agency No. PI-03-02) pending
before an EEOC Administrative Judge (AJ1).

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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Through her attorney, Complainant sought to amend the matters pending hearing. By decision
dated April 11, 2008, AJ1 denied Complainant’s request to include ten claims. Those claims
were remanded to the Agency for separate processing.

By decision dated November 3, 2008, the Agency dismissed all the remanded claims on a variety
of procedural bases.

Complainant later withdrew her hearing request. On December 8, 2010, the Agency issued a
final decision addressing both Agency Nos. PI-03-02 and PI-04-08 on the merits. The Agency
determined Complainant was not subject to discrimination as alleged. Complainant appealed the
Agency’s final decision, which was docketed as EEOC Appeal No. 0120111827.

Subsequently, despite its earlier determination that Complainant had withdrawn her hearing
request, the Agency later asserted that AJ1 issued a decision on Agency No. PI-04-08. The
Agency determined it needed to reissue a final decision solely addressing Agency No PI-03-02.
On June 7, 2011, the Agency issued a new final decision finding no discrimination on Agency
No. PI-03-02. Complainant appealed this final decision which was docketed as EEOC Appeal
No. 0120113765.

The Commission contacted the Agency to obtain the complaint files for both Agency Nos. PI-03-
02 and PI-04-08. When the Agency failed to provide the record, the Commission issued a Show
Cause Order.

The Agency still failed to produce the requested records. In EEOC Appeal Nos. 0120111827
and 0120113765 (July 16, 2014), the Commission found that: (1) the Agency has repeatedly
failed to comply with EEOC's requests for the complete complaint files, and (2) there has been
an excessively long delay with no meritorious explanation provided by the Agency. The
Commission found the Agency’s failure to submit the complete complaint records made it
impossible to determine whether the findings and credibility determinations made or adopted in
its final decision were supported by the record. As a result, the Commission issued a sanction of
default judgment for Complainant.

While these matters were pending before the Commission, Complainant’s attorney asserted that
on May 9, 2011, he sent a letter to the Agency asking to follow up on AJ1’s remand of these
claims. The attorney claimed that the Agency did not respond.

Subsequently, on March 6, 2017, Complainant contacted the EEOC’s Hearings Unit in the
Washington Field Office requesting a hearing on the remanded claims, attaching a copy of AJ1’s
decision from April 2008. Complainant argued that the Agency failed to process the claims
which were not accepted by AJl. On March 21, 2017, the Agency responded to the EEOC’s
Hearings Unit informing them that the matter had been closed by decision dated November 3,
2008. This matter was assigned to a new AJ (AJ2). Complainant responded that neither she nor
her attorney had ever received the November 3, 2008 dismissal. At the same time,
Complainant’s attorney filed an appeal from that dismissal to “protect” Complainant’s rights.
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AJ2 issued a dismissal of the hearing request on June 29, 2017. AJ2 noted that the Agency had
issued a letter dismissing Complainant’s claims of discrimination which were not accepted by
AJ1. AJ2 noted that this letter constituted a final decision by the Agency regarding these claims
and Complainant had not appealed the dismissal to the Commission. AJ2 indicated that
Complainant’s request for a hearing on these claims was filed more than six years after the last
communication between the Attorney and the Agency regarding these claims when they should
have been raised with the Commission as an appeal. Therefore, AJ2 concluded that the request
for a hearing was untimely, that he did not have jurisdiction over the matter, and that the hearing
must be dismissed.

By letter dated July 18, 2017, the Agency issued a final order dismissing the complaint.
Complainant again appealed from the final order.

The Commission consolidated both appeals (from the November 2008 dismissal decision and the
July 2017 final order). In our previous decision, the Commission dismissed Complainant’s
complaint under the doctrine of laches.

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. 0120171692 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.
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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

January 31, 2018
Date