U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Byron E.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Office of the Secretary - Age Administration), Agency. Request No. 2021003458 Appeal No. 2021001541 Agency No. HHS-OS-0027-2020 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Byron E. v. Dep’t of Health & Human Servs., EEOC Appeal No. 2021001541 (Apr. 29, 2021). 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, an Administrative Law Judge at the Agency's Office of Medicare Hearings and Appeals, Arlington Field Office in Arlington, Virginia, filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), religion (religious belief not aligned with management officials), disability, age (64 years), and in reprisal for prior protected EEO activity when: 1. In 2011, Complainant was denied the opportunity to become a member of a Union Bargaining Unit such as the type of bargaining unit of which the Administrative Law Judges on the Departmental Appeals Board are members; 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. 2021003458 2 2. On January 19, 2018, Complainant was placed on “enforced leave” (administrative leave); 3. On an unspecified occasion in 2018, Complainant was not reimbursed for travel costs associated with his case before the Merit System Protection Board (MSPB); 4. From January 19, 2018 to the present, Complainant has been unable to participate in an Agency employee survey, complete training, receive a Christmas card and other Agency notifications due to lack of access to his email due to his administrative leave status; 5. On May 28, 2020, Complainant learned that all the electronic copy of files and hearing recordings Complainant had previously adjudicated had been “destroyed” (deleted) from the regular office electronic filing location; 6. In late May/early June 2020, Complainant learned that his appointment as an Administrative Law Judge was not ratified by the Secretary of the Department of Health and Human Services while Complainant was in administrative leave status; 7. On or about July 2020, Complainant was not eligible to apply for a Chief Administrative Law Judge position that became open. Complainant believes that due to the lack of access to his email while on administrative leave status, he did not receive notifications for Administrative Law Judge-2 positions. Had Complainant been able to apply, he would have been selected and would then have had the qualifications to apply for the Chief Administrative Law Judge position; and 8. In August 2019, Complainant learned that the Agency transferred human resources authority from the Program Support Center and the Rockville Center to OMHA in 2015. The Agency dismissed the complaint on various grounds. In the appellate decision, the Commission affirmed the decision finding that the Agency properly dismissed the complaint. The Commission determined that claims (1) - (3) and (8) had been untimely raised with an EEO Counselor; claims (6) and (7) were previously raised in another complaint; and claims (4) and (5) failed to state a claim. In his request for reconsideration, Complainant expresses his disagreement with the previous decision and reiterates arguments previously made and considered on appeal. 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), Chap. 9 § VI.A (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. Complainant has not done so here. Complainant has not presented any persuasive evidence to support reconsideration of the Commission's decision. 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. 2021003458 3 The decision in EEOC Appeal No. 2021001541 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 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, 2021 Date
