Jared F,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 25, 2018

0520180196 (E.E.O.C. Apr. 25, 2018)

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

Jared F,1
Complainant,

v.

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

Request No. 0520180196

Appeal No. 0120152529

Hearing No. 461-2015-00012X

Agency No. 2003-0629-2014102084

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120152529 (November 29, 2017).
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 discriminated against him on
the bases of his sex and reprisal when: (1) from October 30, 2013, management’s promise to
change a technical oversight psychologist was never materialized and Complainant's repeated
requests to work with a “culturally fair technical oversight psychologist has been rejected;” (2)
on February 4, 2014, he received an email from the Clinical Neuropsychologist implying that he
was slow in processing his work; (3) from February 2014, management failed to provide him
with a copy of the Administrative Investigative Board (AIB) report concerning an incident for

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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which he was interviewed in September 2013; (4) on March 6, 2014, Human Resources did not
provide him with the date his position description was sent for classification nor was he provided
the name of the individual who processed the paperwork; (5) on March 11, 2014, the Clinical
Neuropsychologist ignored Complainant’s findings concerning the right way to correct computer
software errors; (6) on March 14, 2014, the Psychiatrist stated to Complainant that him going to
the Administrative Officer was going to rally the Administrative Officer against the Clinical
Neuropsychologist; (7) on May 21, 2014, the Chief of Mental Health issued Complainant a letter
of explanation, assigning him to work a 5/8 work schedule and on June 24, 2014, the Chief of
Mental Health explained to Complainant face to face that on the fifth day of the week, she and
the Assistant Chief would supervise Complainant directly; and (8) on May 22, 2014,
management denied Complainant's request for reassignment, dated May 21, 2014.

Following an investigation, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). The Agency submitted a motion for
summary judgment to the AJ, however, in its motion, the Agency did not address any of the
claims in the instant complaint. Rather, it addressed a series of seven alleged incidents that
occurred between March and July 2013, and were not part of the claims investigated in
Complaint No. 2003-0629-2014102084. The AJ granted the Agency’s motion and issued a
decision without a hearing based on the seven claims alleged in the Agency’s motion. The
Agency subsequently adopted the AJ’s finding of no discrimination as to the seven alleged
incidents cited in the Agency’s motion that are not the claims alleged in the instant complaint.
On appeal, the Commission vacated the Agency’s final action and remanded Complaint No.
2003-0629-2014102084 to the Agency for further processing.

In its request for reconsideration, the Agency acknowledges, and attempts to cure the error by
providing the Commission with a corrected report of investigation. We find, however, that after
reviewing the previous decision and the entire record, 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. 0120152529 remains the Commission’s decision. There is no further right
of administrative appeal on the decision of the Commission on this request. The Agency shall
comply with the Order as set forth herein.

ORDER

The Agency is directed to submit a hearing request, a copy of the complaint file in Complaint
No. 2003-0629-2014102084, and a copy of this decision to the EEOC’s Hearings Unit in New
Orleans within 30 calendar days of the date this decision is issued. The Agency shall provide
written notification to the Compliance Officer at the address set forth below that the complaint
file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. § 1614.109 on the claims raised and
investigated in Complainant’s April 10, 2014 complaint, identified as Complaint No. 2003-0629-
2014102084. The Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.

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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. 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

April 25, 2018
Date