[Redacted], Cole E.,1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 7, 2021

Appeal No. 2019004346 (E.E.O.C. Apr. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cole E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Request No. 2021000356 Appeal No. 2019004346 Hearing No. 460-2018-00332X Agency No. 2003-0667-2016102215 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019004346 (October 5, 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). As a threshold matter, Complainant submitted one request to reconsider for both Appeal Nos. 2019005169 and 2019004346. However, Appeal No. 2019005169 was a dismissal for a premature appeal. Since the time of the Appeal No. 2019005169 dismissal, the Agency has issued a Final Agency Decision (FAD) and we will issue a separate decision on that matter, under Appeal No. 2021001912. The instant request to reconsider will only address Appeal No. 2019004346. 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. 2 2021000356 On May 3, 2016, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency subjected him to discrimination and a hostile work environment in reprisal for prior protected EEO activity when: 1. On January 25, 2016, the Supervisory Respiratory Therapist, Complainant’s immediate supervisor (S1), denied Complainant’s request to allow him to adjust the evening staffing schedule, which resulted in him continuously being assigned five to six patients per pay period; 2. On February 2, 2016, S1 removed Complainant’s assignment of duty for scheduling; 3. On February 9, 2016, S1 solicited negative information concerning Complainant from other staff members; 4. On February 16, 2016, S1 required Complainant to continue taking patient assignments; and 5. On February 22, 2016, S1 presented Complainant with a list of complaints against him that included false and slanderous allegations.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to reprisal as alleged. In EEOC Appeal No. 2019004346, the Commission affirmed the Agency’s final decision, determining that Complainant did not present sufficient evidence to establish the existence of unlawful retaliatory motive in the incidents alleged. In his request to reconsider, Complainant reiterates many of the arguments that he made, and which have already been considered, during the original appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. 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. 2 The prior decision noted that the Agency dismissed an additional claim for untimely EEO Counselor contact. Complainant raised no challenges to the dismissal of the claim on appeal, and the Commission found no basis to disturb the dismissal. 3 2021000356 Complainant’s request for reconsideration is therefore DENIED. The decision in EEOC Appeal No. 2019004346 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. 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 7, 2021 Date