[Redacted], Harlan P., 1 Complainant,v.Katy Kale, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Jan 28, 2021

Appeal No. 2020003983 (E.E.O.C. Jan. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harlan P.,1 Complainant, v. Katy Kale, Acting Administrator, General Services Administration, Agency. Request No. 2021000729 Appeal No. 2020003983 Hearing No. 450-2020-00088X Agency No. GSA-19-R7-P-0030 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003983 (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). Complainant was employed by the Agency as a Building Management Trainee in the Pathways Intern Program at the Greater West Service Center in San Antonio, Texas. Complainant filed an EEO complaint alleging discrimination on the basis of disability (gastroesophageal reflux disease) when the Agency failed to respond to his request for reasonable accommodation since May 29, 2018.2 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 Complainant raised a second allegation related to his termination. The Agency processed that claim as a mixed case complaint and gave Complainant appeal rights to the Merit Systems 2021000729 2 Our prior appellate decision affirmed the Equal Employment Opportunity Commission Administrative Judge’s (AJ) decision by summary judgment which found in favor of the Agency, concluding Complainant failed to prove his discrimination claims. In his decision, the AJ noted that, under the Pathways Program, a participant was allowed one break in enrollment and had to remain in good academic standing. The evidence showed Complainant’s academic dismissal for the fall semester in 2014, that Complainant requested a break from enrolling in spring 2015 which was approved, and an academic dismissal for fall semester 2017. When, in May 2018, he was asked to provide his most recent transcript, he attached the fall 2017 transcript. The AJ noted that Complainant was not enrolled in school during the spring 2018 semester. Complainant was subsequently issued a Notice of Proposed Removal, because he could not meet the requirements for participation in the Pathways Program. Accordingly, the AJ found that Complainant was not a qualified individual with a disability because an essential function of his job was to remain in school. The AJ also determined that there was no evidence in the record to show that Complainant advised management officials that he suffered from an impairment that substantially limited him in a major life activity or that he requested reasonable accommodation. In his request for reconsideration, Complainant expresses his disagreement with the previous decision, the AJ’s decision, and attempts now to provide new evidence that would show he was in fact enrolled in an online university. However, there is no reason to believe this evidence was not available to him when he was before the AJ or during his initial appeal. We also note that in his request, Complainant states that “management officials were advised that Complainant suffered from an impairment that substantially limited him in a major life activity through the rebuttal letter [to the] proposed termination.” However, reasonable accommodation is prospective, not retroactive. While he references other times when he let officials know of medical appointments and treatments, there is no indication that he asked for reasonable accommodation because of his disability at those times. 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. 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. 2020003983 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. Protection Board. As such, Complainant’s termination was not addressed in the prior EEOC decision. 2021000729 3 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 January 28, 2021 Date