Demarcus I.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 2, 20180520180527 (E.E.O.C. Nov. 2, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Demarcus I.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Request No. 0520180527 Appeal No. 0120160589 Hearing No. 570-2013-00771X Agency No. 200401AL2012104200 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120160589 (June 5, 2018). 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). In his underlying complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of sex (male), disability (depression, anxiety, insomnia, and high blood pressure developed about February 2012), and reprisal for prior protected EEO activity (December 2011 EEO complaint) when: 1) In November 2011, the Agency placed him on a performance improvement plan; 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. 0520180527 2 2) From February 23, 2012 to April 10, 2012, the Agency required him to use eight hours of sick leave per day to adhere to his physician’s medical recommendations; 3) About April 10, 2012, management failed to consider and follow his medical restrictions; 4) Between April 10, 2012 and October 19, 2012, the Agency required him to use leave to work a half-day schedule to comply with his physician’s medical recommendations; 5) Between April 10, 2012 and December 29, 2012, the Agency delayed and then denied his reasonable accommodation request; 6) About April 17, 2012, the Agency requested additional medical information and documentation beyond what was required to document his medical condition; 7) About May 18, 2012, the Agency requested a telephonic interview with him and his physician; 8) On August 9, 2012, the Agency terminated his interim detail, which was an accommodation, and returned him to a hostile work environment that exacerbated his condition; 9) During September 2012, the Agency placed him on a performance improvement plan that held him accountable for standards that he no longer performed; 10) From October 22, 2012 to December 29, 2012, he was required to use sick and annual leave until he retired on December 29, 2012; and 11) On November 7, 2012, the Agency issued him a decision sustaining a seven-day calendar suspension for failure to attend meetings. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 24, 2015, the AJ granted the Agency’s motion for summary judgment and found no discrimination. The Agency fully implemented the AJ’s decision on October 22, 2015. On appeal, the Commission affirmed the Agency decision. In affirming the Agency decision, the Commission found that the Agency did not discriminatorily deny Complainant’s request for reasonable accommodation or subject him to a hostile work environment on the bases of sex, disability, or reprisal for prior EEO activity. 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. In so finding, we agree with the Agency that Complainant’s contentions are largely reiterations of the same contentions that were previously made and fully considered on appeal. 0520180527 3 Although Complainant alleges that the Commission made numerous errors in its appellate decision, he has not shown that the decision involved a clearly erroneous interpretation of material fact or law. The decision in EEOC Appeal No. 0120160589 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 November 2, 2018 Date Copy with citationCopy as parenthetical citation