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

Equal Employment Opportunity Commission

Mar 3, 2022

Appeal No. 2020003038 (E.E.O.C. Mar. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darin B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022000077 Appeal No. 2020003038 Hearing Nos. 480-2019-00280X; 480-2019-00747X Agency Nos. 200P-0600-2018103398; 200P-0600-2019101106 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003038 (August 9, 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). During the relevant time, Complainant worked as a Motor Vehicle Operator Lead at the Agency’s Long Beach Healthcare System in Long Beach, California. Complainant filed two formal complaints claiming harassment and discrimination based on race, sex, age, and in reprisal for prior protected activity. In the first complaint, he alleged that: he was detailed as the Acting Motor Pool Supervisor for 120 days without receiving a pay increase; his 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. 2022000077 2 120-day detail as the Acting Motor Pool Supervisor ended without his being offered a non- competitive promotion to the position of Motor Pool Supervisor; he was directed to perform the Fleet Manager duties without receiving appropriate compensation; and he was subjected to additional harassment, including that Engineering leadership refused to discuss Motor Pool issues with Complainant during his detail as the Acting Motor Pool Supervisor, the Acting Chief responded to an email from the Medical Center Director, which stated that Complainant was incompetent and that the Motor Pool Service was struggling, a supervisor avoided having contact with Complainant and dealt directly with other drivers, a supervisor misinformed the Administrative Officer that Complainant’s purchase card had been lost, and the Chief Engineer took Complainant’s purchase card and wrote down the card’s number without Complainant’s consent. In his second complaint, he alleged that: a Manager gave him a verbal counseling regarding a privacy violation, he was issued an unacceptable overall performance appraisal rating, a Chief issued him a proposed five-day suspension, the Delegation of Authority memorandum dated May 23, 2018 included a forgery of his signature, he was issued a proposed removal, he was issued two proposed 14-day suspensions, he was suspended for 14 days, and he was approached while he was getting his blood pressure taken and handed some paperwork. After an investigation, Complainant requested a hearing, and the subject complaints were consolidated. The assigned EEOC Administrative Judge (AJ) issued a decision by summary judgment concluding the evidence of record did not establish discrimination or harassment as alleged. In so doing, the AJ found that, with respect to the allegations regarding his duty assignments and denied promotion, there was nothing to refute that he was given the detail because the Agency needed someone to fill-in for a supervisor, the detail expired after 120 days because it was a 120-day detail, and Complainant was not promoted into the position because the position was not vacant. The AJ also found that there was nothing to refute that, after the detail, Complainant was assigned some administrative duties, as opposed to supervisory duties, because the administrative duties needed to be completed and management felt the duties were within the scope of Complainant’s job; for the counseling, there was nothing to refute that Complainant left his computer unattended; for the appraisal, there was nothing to refute that he did not follow supervisory instructions and that he did not report an accident; and for the proposed discipline and suspension, there was noting to substantiate that the incidents cited in the proposals and suspension did not occur and to propose suspension or removal in response to the alleged conduct is not so surprising as to be sufficient to refute those reasons and the proposals were justified. The AJ found there was nothing notable about the Chief’s failure to include appeal rights in one proposal, which he later reissued with appeal rights, noting the sheer number of proposed actions does not refute the specific instances cited for each and there was noting to refute those stated reasons. The AJ also found the evidence was insufficient to ultimately prove these actions were motivated by Complainant’s protected status. Regarding Complainant’s claim of a hostile work environment, the AJ noted that because there was no evidence to connect the discrete actions mentioned above to Complainant’s protected status, these actions were excluded from the harassment analysis. 2022000077 3 The AJ found the record did not confirm that the remaining allegations were sufficiently abusive or offensive to constitute a claim under federal law and noted that these alleged events spanned almost two years and were more akin to the types of petty slights, insignificant annoyances, and regular workplace occurrences that are insufficient to state a claim. The AJ noted that the fact that a supervisor was found to have harassed staff before did not mean that Complainant was subjected to harassment months and years later and Complainant did not otherwise describe how the alleged conduct amounted to an objectively hostile environment. The AJ also found that the evidence was insufficient to ultimately prove there was discriminatory motive. Thereafter, the Agency issued a final order implementing the AJ’s finding of no discrimination or harassment. Complainant appealed. In EEOC Appeal No. 2020003038, the Commission affirmed the Agency’s final order implementing the AJ’s finding of no discrimination or harassment. In the instant request for reconsideration, we have carefully reviewed Complainant’s arguments and determine that the matters either were raised or could have been raised below. We note that during the original appeal from the Agency’s final order, Complainant presented extensive arguments, many of which have been replicated in the instant request. We emphasize 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). 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. 2020003038 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. 2022000077 4 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 March 3, 2022 Date