Harlan P.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 27, 2016

0520160198 (E.E.O.C. May. 27, 2016)

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

Harlan P.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520160198

Appeal No. 0120130574

Agency No. 2003-0671-2011101933

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120130574 (April 7, 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).

In his underlying complaint, Complainant alleged that the Agency subjected him to a hostile
work environment and unlawful national origin and disability discrimination when: (1) from
January 3-7, 2011, his supervisor (S1) denied him one week of annual leave; (2) on January 5,
2011, S1 denied his request for sick leave and charged him leave without pay; (3) on January
7, 2011, S1 denied his request for sick leave; (4) on January 31, 2011, S1 denied his request
for sick leave; (5) on February 4, 2011, S1 denied his request for sick leave; and (6) on
February 10, 2011, Complainant resigned (constructive discharge) after receiving a letter of
termination. Complainant requested a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ), but the AJ assigned to the case found that after
viewing the evidence in a light most favorable to Complainant, a decision without a hearing
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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was appropriate as there were no genuine issues of material fact in dispute. Initially, the AJ
dismissed claims (3) and (4), finding that the evidence established that Complainant was, in
fact, granted sick leave on the dates identified. As to the remaining claims, the AJ concluded
that Complainant failed to show that the Agency’s articulated reasons for its actions were a
pretext for unlawful national origin or disability discrimination, or that the Agency’s actions
rose to the level of actionable harassment. In its final order, the Agency adopted the AJ’s
finding of no discrimination. On appeal, the Commission affirmed the Agency’s final order.

In his request for reconsideration, Complainant largely reiterates arguments made, and fully
considered, on appeal. Accordingly, 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. 0120130574 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

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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 27, 2016
Date