Greg M.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 14, 2018

0520180293 (E.E.O.C. Jun. 14, 2018)

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

Greg M.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520180293

Appeal No. 0120160345

Agency No. 2003-0331-2013101109

DECISION ON REQUEST FOR RECONSIDERATION

Both the Agency and Complainant requested that the Equal Employment Opportunity
Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120160345
(January 31, 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).

At the time of events rising to this complaint, Complainant worked as a Veterans Claims
Examiner at an Agency facility in St. Louis, Missouri. On February 28, 2014, Complainant filed
his complaint alleging discrimination based on race, sex, disability, age, and in reprisal for prior
EEO activity when coworkers subjected him to a hostile work environment, management failed
to provide reasonable accommodation (a quieter work area), and management issued him a fully
successful performance rating and a reprimand.

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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The Agency initially issued its decision on April 15, 2015, finding discrimination based on
disability when it failed to provide Complainant a reasonable accommodation. The Agency also
found that it did not subject Complainant to harassment or disparate treatment.

On October 1, 2015, the Agency issued its final decision awarding Complainant $5,000 in
nonpecuniary, compensatory damages. Complainant appealed the Agency’s decision to the
Commission seeking $300,000 in nonpecuniary, compensatory damages and reasonable
attorney’s fees. The Commission modified the Agency’s decision and awarded $50,000 in
nonpecuniary, compensatory damages, including reasonable attorney’s fees pursuant to the Order
set forth therein. In its request, the Agency argues that the Commission should reduce the award
of nonpecuniary, compensatory damages. In his request, Complainant, opposing the Agency’s
request, argues that the Commission should increase the award.

After reviewing the previous decision and the entire record, the Commission finds that the
requests fail to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the requests. The decision in EEOC Appeal No. 0120160345 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on these requests.

ORDER

With 60 calendar days of the date when this decision is issued, the Agency shall tender to
Complainant nonpecuniary damages in the amount of $50,000, less any previous amounts of
nonpecuniary damages previously paid to Complainant.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evdence that the corrective action has been implemented.

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. If the Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The
Complainant also has the right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement. See 29 C.F.R.
§§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the
right to file a civil action on the underlying complaint in accordance with the paragraph below
entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the
administrative processing of the complaint, including any petition for enforcement, will be
terminated. See 29 C.F.R. § 1614.409.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or filed your appeal with the Commission. 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. Filing a civil action will
terminate the administrative processing of your complaint.
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

June 14, 2018
Date