Karl W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 7, 2020

2019005880 (E.E.O.C. Jan. 7, 2020)

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

Karl W.,1
Complainant,

v.

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

Request Nos. 2019005879; 2019005880

Appeal Nos. 2019001448; 2019001451

Hearing No. 560-2014-00071X

Agency Nos. 2003-0609-2013103545; 2003-0657-2013101575

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Karl W. v. Dep’t of Veterans Affairs, EEOC Appeal Nos.
2019001448 and 2019001451, (July 30, 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, the Chief of Cardiology at the Agency's Medical Center in St. Louis, Missouri, filed
an EEO complaint (Agency No. 2003-0657-2013101575) alleging that the Agency subjected him
to reprisal for prior protected EEO activity when:

1. On December 13, 2012, Complainant received a memorandum that he was being
detailed to another section for 120 days;

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.
2019005879, 2019005880

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2. On December 13, 2012, Complainant was denied special pay (performance award) due
to negative comments on his performance appraisal; and

3. On April 16, 2013, Complainant’s part-time employment as a physician was
terminated.

Complainant filed a second EEO complaint (Agency Complaint No. 2003-0609-2013103545)
alleging that the Agency subjected him to reprisal for his prior protected EEO activity when:

4. On or about May 3, 2013, Complainant became aware that he was removed from
consideration for employment for a Physician position and subsequently was not hired.

Following the Agency's investigations into both complaints, Complainant requested hearings
before an EEOC Administrative Judge (AJ). The AJ assigned to the matters consolidated the two
complaints and held a hearing. Following the hearing, the AJ issued a decision finding that
Complainant failed to demonstrate that he was subjected to reprisal. The Agency subsequently
issued a final order fully implementing the AJ’s decision.

In our appellate decision, the Commission found no evidence demonstrating that the Agency’s
explanation for its actions to be pretext for retaliatory animus. As a result, the Commission found
that substantial record evidence supported the AJ’s finding that Complainant was not subjected to
reprisal as alleged.

In his request for reconsideration, Complainant presents arguments previously raised in his initial
appeal, including that he never compromised patient care. Further, Complainant insists that there
existed a nexus between his EEO activity and termination because the AIB report did not
recommend he be terminated.

The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request
No. 0520070736 (Aug. 20, 2007). A request for reconsideration is not the time for Complainant
to raise new evidence or new arguments. 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. Complainant raises no argument tending to demonstrate the
underlying decision involved a clearly erroneous interpretation of the facts or applicable law.
Further, Complainant concedes he is reiterating certain arguments previously made on appeal.

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 Nos. 2019001448 and 2019001451 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.
2019005879, 2019005880

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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

January 7, 2020
Date