0520160135
05-12-2016
Billy B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Billy B.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Request No. 0520160135
Appeal No. 0120132680
Agency No. 200H03102011102919
DECISION ON REQUEST FOR RECONSIDERATION
On December 18, 2015, Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120132680 (November 19, 2015). 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).
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative, GS-9, at the Agency's Affairs Regional Office in Philadelphia, Pennsylvania.
On April 10, 2012, the Agency issued final Agency decision (FAD 1) finding that it discriminated against Complainant based on his disability when it (a) denied him a reasonable accommodation, and (b) constructively discharged him effective July 20, 2011. As relief, the Agency ordered, in relevant part, that Complainant be offered reinstatement and or reassignment to the position of Veterans Service Representative, GS-9, retroactive to July 20, 2011, with back pay, interest, and benefits. In FAD 1, the Agency remanded for a supplemental investigation on compensatory damages. Following a supplemental investigation, the Agency issued FAD 2 on June 21, 2013, on remedies. In relevant part, the Agency awarded back pay from the effective date of Complainant's discharge on July 20, 2011 to September 28, 2012, the date he declined the Agency's offer of reinstatement. It denied Complainant's request for front pay, and awarded him $85,000 in nonpecuniary damages.
In our previous decision, we found that Complainant's decision to reject the Agency's offer of reinstatement served to terminate the back pay period through which the Agency was required to calculate his back pay and related benefits. We also found that the Agency's award of $85,000 was reasonable to compensate for Complainant's proven nonpecuinary losses.
In his request for reconsideration, Complainant expresses his disagreement with the previous decision and presents some of the same arguments he raised on appeal. 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. 0120132680 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
May 12, 2016
__________________
Date
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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