[Redacted], Adalberto D., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 29, 2021

Appeal No. 2019005111 (E.E.O.C. Jun. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adalberto D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request Nos. 2021002096; 2021002097 Appeal Nos. 2019005111; 2019005112 Hearing No. 541-2018-00007X Agency Nos. 2003-0339-2017101517; 2003-0339-2018105059 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its consolidated decision in Adalberto D. v. Dep’t of Veterans Affairs, EEOC Appeal Nos. 2019005111, 2019005112 (Feb. 10, 2021). 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-1171-11 Review Appraiser (Staff Appraiser) at the Denver Regional Office, Regional Loan Center, Construction/Valuation Section in Lakewood, Colorado, filed two EEO complaints alleging that the Agency subjected him to discrimination and a hostile work environment when: 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. 2021002096; 2021002097 2 1. On January 25, 2017, the Chief of the Denver Regional Loan Center (Complainant's fourth line supervisor) (S4) and Complainant's first line supervisor (S1) notified him that his telework agreement as a reasonable accommodation was going to be rescinded; 2. As of April 3, 2017, S4 denied his August 2016 request for assistance with printing while teleworking as a reasonable accommodation; 3. From August 2016 to April 3, 2017, S4 gave him negative monthly performance ratings; 4. As of August 9, 2017, the Denver Local Reasonable Accommodation Coordinator (RA Coordinator 1) denied his January 30, 2017 reasonable accommodation request, in part; 5. On August 9, 2017, RA Coordinator 1 denied his January 30, 2017 reasonable accommodation request for no overnight field review; 6. As of September 28, 2017, the District Office failed to grant or deny his January 25, 2017 hardship transfer request; 7. On October 13, 2017, the Agency did not grant his requests for specialized masks. On May 8, 2018, S4 denied his reasonable accommodation of no long-distance driving, no overnight travel, payment for parking close to the airport and an extra bag (if required to travel overnight), and no travel to smoke filled areas; 8. On December 7, 2017, S4 issued him a monthly performance review that he did not meet standards; 9. From March 2018 through May 2018, S4 refused to respond to his emails requesting approval of his reasonable accommodation request; 10. From March 2018 through July 2018, S4, the local Union President, RA Coordinators 1 and 2 requested documents from him that were not relevant to his reasonable accommodation and request for a hardship transfer; 11. On May 18, 2018, S4 denied his May 16, 2018 hardship transfer requests to Manchester, Boston, or New Hampshire; 12. On June 11, 2018, S4 denied his reasonable accommodation transfer request to the Indianapolis Fiduciary Hub; 13. From June 1-20, 2018, S4, and RA Coordinators 1 and 2 e-mailed and called him numerous times requesting additional medical paperwork and information that had already been provided for his reasonable accommodation; 14. On June 20, 2018, S4 issued him a proposed 15-day suspension; 15. From June 21-28, 2018, S4 continually asked him to revoke his request for an internal transfer detail; 16. On June 24, 2018, S4 denied his June 21, 2018 second hardship transfer request to the Indianapolis Fiduciary Hub; 17. On June 27, 2018, the Union President, who colluded with S4, conveyed to him S4's denial of his second hardship transfer request to the Indianapolis Fiduciary Hub; 18. On June 28, 2018, S1 sent deceptive emails to the RA Coordinator stating he agreed to revoke his reasonable accommodation and accept the internal transfer detail; 19. On July 5, 2018, the Director of the Denver Regional Office (Complainant's fifth or sixth-line supervisor) (S5) issued him a 2-day suspension; and 2021002096; 2021002097 3 20. On July 6, 2018, S4 revoked his reasonable accommodation for telework. Following investigations, the Agency issued a final agency decision on the consolidated complaints finding that Complainant was not subjected to discrimination as alleged. In the appellate decision, the Commission affirmed the decision. In his request for reconsideration, Complainant expresses his disagreement with the previous decision and reiterates arguments previously made and considered on appeal. 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 (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). 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 has not presented any persuasive evidence to support reconsideration of the Commission's 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 Nos. 2019005111 and 2019005112 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. 2021002096; 2021002097 4 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 June 29, 2021 Date