Lloyd E.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0520180391 (E.E.O.C. Oct. 18, 2018)

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

Lloyd E.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Request No. 0520180391

Appeal No. 0120180953

Agency No. 2003-0549-2017103465

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180953 (April 3, 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).

In the underlying complaint, Complainant alleged that the Agency subjected him to discrimination
based on disability when: (1) on March 13, 2017, the Inpatient Social Work Supervisor (S1) told
him “we need social workers who can walk fast and respond fast”; (2) on May 10, 2017, S1 made
negative and derogatory remarks about Complainant stating “he is incompetent, his quality of work
is poor, and they do not need anyone on the unit that could not walk fast"; (3) on May 23, 2017,
S1 followed Complainant to see if he attended the Interdisciplinary Team meeting; and (4)
effective June 15, 2017, S1 terminated him from his temporary appointment.

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.
0520180391

2
Our previous decision affirmed the Agency’s dismissal pursuant to 29 C.F.R. § 1614.107(a)(2),
due to the untimely filing of the formal complaint.

In his request for reconsideration, Complainant contends that he experienced severe adverse side
effects following a post-surgery medication change in September 2017, which rendered him
incapacitated and caused him to miss the filing deadline. Accordingly, Complainant requests that
we grant his request for reconsideration.

The Commission has consistently held that an extension is warranted only where an individual is
so incapacitated by his or her condition that he or she is unable to meet the regulatory time limits.
The Commission previously found that Complainant failed to provide sufficiently persuasive
evidence to waive the regulatory filing limitation. 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), 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.

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. 0120180953 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.

0520180391

3
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

October 18, 2018
Date