[Redacted], Albert S., 1 Complainant,v.Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2019005763 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Albert S.,1 Complainant, v. Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency. Request No. 2020005342 Appeal No. 2019005763 Agency No. 200H-0562-2018103529 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019005763 (September 9, 2020). 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 worked as a Certified Nursing Assistant at the Agency’s Medical Center in Erie, Pennsylvania. On July 13, 2018, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency discriminated against him and subjected him to a hostile work environment based on race (African-American) when: 1. On April 1, 2018, a Charge Nurse (CN) raised his voice and displayed an intimidating posture; and 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. 2020005342 2 2. On April 6, 2018, he was terminated from federal service during his probationary period. After an investigation, the Agency issued a final decision in accordance with Complainant’s request, finding no discrimination. Complainant filed an appeal. In the initial decision, the Commission found that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s termination (claim (2)). Specifically, the Commission determined that the Agency asserted that it removed Complainant because he was insubordinate to CN, left a patient at risk for injury, and did not follow instructions. The Commission determined further that Complainant failed to show that these articulated reasons were pretext for discrimination. EEOC Appeal No. 2019005763 (Sept. 9, 2020). Regarding claim (1), under a harassment analysis, the Commission determined that Complainant did not provide any evidence that the alleged action at issue was based on his race. Id. Complainant filed a request for reconsideration. In his request, Complainant asserts that the CN framed him with respect to the incident that led to his termination. Complainant reasserts that he was subjected to harassment by CN. In response, the Agency requests that we deny Complainant’s request for reconsideration. The initial decision properly found no discrimination. The initial decision properly analyzed these claims under a disparate treatment and harassment analysis. In his request, Complainant raises arguments that were made below. We remind complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Aug. 5, 2015), Chapter 9. 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. 2019005763 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. 2020005342 3 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 February 9, 2021 Date