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

Equal Employment Opportunity Commission

Oct 13, 2021

Appeal No. 2020001176 (E.E.O.C. Oct. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jefferey G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Request No. 2021003728 Appeal No. 2020001176 Hearing No. 560-2018-00145X Agency No. 200J-0657-2016103705 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Jefferey G. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020001176 (May 24, 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). On August 10, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and/or harassment on the bases of race (Black), sex (male, LGBTQ)2, and/or in reprisal for prior protected EEO activity when: 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 In Bostock v. Clayton County, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. , 140 S. Ct. 1731 (2020); see also Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an 2021003728 2 1. During the past 15 months, coworkers made comments such as “we have no problem working with homosexuals.” 2. On July 13, 2016, Complainant asked his coworker (CW1) about diversity training and she stated it mostly centered on LBGTQ issues and the instructor was off-base and spoke as if she and the other heterosexual staff members were third grade retards. 3. On July 26, 2016, a coworker (CW2) complained to Complainant that he had the computer volume up too loud while he was watching a video on race relations in America. 4. On July 27, 2016, a registered nurse (RN1) yelled at Complainant in a loud and aggressive tone, blocked his exit, made reference to his sexual orientation, and made comments such as “don’t give me any of your sassiness.” 5. On May 16, 2016, Complainant was not selected for the position of Supply Technician, GS-2005-05, under vacancy announcement STL-T5-16-GC-1598672- BU. 6. On August 2, 2016, after Complainant reported the incident with the RN1, he was detailed to another department. 7. On September 9, 2016, a supervisor (Supervisor) spoke to Complainant about his failure to communicate with coworkers, telling him that his behavior would be addressed in his yearly performance evaluation. 8. On October 28, 2016, Supervisor accused Complainant of not answering his cell phone. 9. On November 21, 2016, Supervisor denied Complainant overtime. 10. On January 18, 2017, Supervisor asked Complainant about his meeting and informed him that he must inform her first before he leaves for any meetings during his work tour. 11. On October 28, 2016, a coworker (CW3) made derogatory statements to Complainant with regard to his being a gay man, stating “[Complainant], do you have a problem with me?,” “I feel you need to express yourself if you have problems with people,” “I do not want you to be [intimidated] but you need to speak up and be a real man,” and “you need to be a real man.” 12. On March 25, 2017, Complainant received a proposed removal. The Agency issued a decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed, and the Commission’s prior decision affirmed the Agency’s decision. allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2021003728 3 In his request, Complainant provides no evidence to warrant granting his request. 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) (Aug. 5, 2015), at 9-18; 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. 2020001176 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. 2021003728 4 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 October 13, 2021 Date