[Redacted], Eric M., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 5, 2021

Appeal No. 2020001960 (E.E.O.C. Jan. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eric M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Request No. 2021000640 Appeal No. 2020001960 Hearing No. 410-2017-00422X Agency No. 200I-VI07-2015103420 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Eric M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020001960 (October 6, 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). In his underlying complaint, Complainant alleged the Agency subjected him to harassment and discriminated against him based on race (Hispanic/Cuban American), disability, age (51), and in reprisal for prior protected EEO activity when: 1. From March 16, 2015, and ongoing, the Supervisor Medical Center Director (Director) and Executive Assistant to the Director of Columbia Veterans Affairs Medical Center 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. 2021000640 2 (VAMC) failed to take action when Complainant reported that a named coworker (PA Specialist 1) harassed and bullied him by following him into the restroom, interfering with his work performance, monitoring when he arrived at work and returned from lunch, and referring to him as “Jose.” 2. On May 5, 2015, PA Specialist 1 yelled at Complainant in an angry and threatening tone, telling Complainant that he was not supposed to make personal phone calls while at work. 3. On May 14, 2015, the Director informed Complainant that he was not going to extend any more leave, and that Complainant was having too many medical appointments. 4. On May 14, 2015, the Director called Complainant a liar and asked Complainant to provide witnesses with regard to the May 5, 2015, incident and accused Complainant of “playing with him.” 5. On May 24, 2015 and April 7, 2015, when Complainant reported the above incident to the Director and Executive Assistant, the Executive Assistant told Complainant “try to get along.” 6. On May 26, 2015, the Director and Executive Assistant failed to take action when Complainant reported that he was being followed by a named coworker (PA Specialist 2). 7. On June 1, 2015, the Director issued Complainant a written counseling. 8. On July 20, 2015, Complainant’s requested reasonable accommodation was denied. The Agency originally dismissed the complaint but on appeal this Commission reversed the dismissal and ordered the Agency to process the complaint in EEOC Appeal No. 0120161097 (Apr. 26, 2016), req. for recon. denied, EEOC Request No. 0520160483 (Nov. 17, 2016). After an investigation, Complainant requested a hearing and the EEOC Administrative Judge (AJ) issued summary judgment in favor of the Agency. The Agency issued a final order adopting the AJ’s finding of no discrimination. Complainant appealed. On appeal, the Commission affirmed the final order, finding summary judgment was appropriate and no discrimination as alleged. Specifically, we found that the preponderance of the evidence did not establish that any of the named individuals were motivated by discriminatory or retaliatory animus. As such, Complainant’s claim of harassment fails as he failed to establish the Agency’s actions were motivated by his protected status. With regard to his reasonable accommodation requests, the Commission found the evidence did not support Complainant’s claim he was denied reasonable accommodations. Complainant was granted a parking spot closer to the building due to his breathing and walking issues. Additionally, Complainant requested as an accommodation an alternative work schedule of every other Friday or Monday off for medical appointments, telework at least one day a week, flexibility for appointments during weekdays, ability to make up time at the end of the day if needed due to appointments, a big office and/or remain in medical media, flexibility to use facilities when needed, freedom of movement to accomplish the mission, a foot rest, and the ability to wear loose clothing. While the Agency reviewed his requests in order to make a determination, Complainant was granted interim accommodations. 2021000640 3 During the process of considering permanent accommodations for Complainant, the Director came to the conclusion that Complainant could not perform the essential functions of the PA Specialist position within his medical limitations. As a result, the Agency also started a search for positions that Complainant could be reassigned to that were within the locations he wanted and were consistent with his limitations. However, Complainant accepted a position with another federal agency before a final determination was made on his reasonable accommodations. Accordingly, we found Complainant failed to establish the Agency denied him reasonable accommodations. While his request for reconsideration largely reiterates arguments made on appeal and before this Commission in our previous decision, Complainant also included medical documentation that was already a part of the record before the Agency, AJ, and this Commission prior to this request. Complainant contends a dispute of material fact exists to warrant a hearing. We find that Complainant largely reiterates arguments made and fully considered on appeal. 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. 2020001960 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. 2021000640 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 January 5, 2021 Date