Irving A.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 30, 2019

2019003357 (E.E.O.C. Aug. 30, 2019)

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

Irving A.,1
Complainant,

v.

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

Request No. 2019003357

Appeal No. 2019001750

Agency No. 2003-0635-2018100566

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Irving A. v. Dep’t of Veteran Affairs, EEOC Appeal No.
2019001750 (Apr. 2, 2019). 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, a GS-8 Police Lieutenant, filed an EEO complaint in which he claimed that the
Agency discriminated against him on the bases of race (Native-American and African-American),
disability (acute bilateral low back pain with bilateral sciatica), and in reprisal for prior protected
activity when:

1. On October 3, 2017, the facility’s Police Chief (Chief) denied Complainant the
opportunity to be reassigned or rotated through the position of Secretary, GS-07;

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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2. On October 4, 2017, Complainant learned that the Chief did not select him for the
supervisory position of Police Captain, GS-9, under Vacancy ID 2010533; and

3. On October 17, 2017 the Chief issued Complainant a letter of reprimand for failure to
follow the Agency's national rules of behavior.

The agency accepted and investigated the complaint and issued a final decision after Complainant
failed to request a hearing finding that Complainant had not been subjected to discrimination or
reprisal as alleged.

On appeal, we affirmed the Agency’s decision after determining that Complainant did not present
sufficient evidence of unlawful motivation on the part of any of the officials named in his
complaint concerning the incidents at issue therein. With respect to claim (1), we found that the
officer who was detailed in lieu of Complainant had previously performed that function.
Concerning claim (2), we found that a selection panel interviewed the candidates and had
determined that the selectee was the best qualified among them. As to claim (3), we found that
the Agency had legitimately reprimanded Complainant for violating computer security protocols.

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, at 9-18 (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. He has not
presented any argument or evidence tending to establish the existence of either reconsideration
criterion. He merely reargues his appeal on the merits, raising the same contentions that we
rejected in our previous 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. The decision in EEOC Appeal No. 2019001750 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.

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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

August 30, 2019
Date