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

Equal Employment Opportunity Commission

May 20, 2021

Appeal No. 2019003859 (E.E.O.C. May. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jermaine I.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021001732 Appeal No. 2019003859 Hearing No. 443-2018-00124X Agency No. 200J-0676-2017103493 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Jermaine I. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019003859 (Jan. 8, 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). Complainant, a Clinical Pharmacy Specialist (Pharmacist) in the Anticoagulation Clinic at the VA Medical Center located in Tomah, Wisconsin, filed a formal EEO complaint alleging discrimination based on disability (allergic rhinitis, migraines, gastric ulcer, irritable bowel syndrome, athlete's foot), national origin (Vietnamese), and sex (male) when: 1. On May 1, 2017, his reasonable accommodation request for a tour change was denied; 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. 2021001732 2 2. On June 9, 2017, Complainant's reasonable accommodation request to not perform face-to-face telehealth meetings was denied; 3. On June 7, 2017, Complainant received a written counseling; and 4. Complainant was subjected to harassment. Following an investigation, Complainant initially requested a hearing before an EEO Administrative Judge but later withdrew that request. The Agency therefore issued a final decision finding no discrimination. In the appellate decision, the Commission affirmed the final decision. Therein, the Commission found that Complainant failed to show that the requested accommodations were necessary for him to perform the essential functions of his position. Regarding the written counseling, the Commission determined that it was issued after Complainant failed to see an assigned patient and questioned why another co-worker could not cover the office phones during the last hour of his shift. Finally, the Commission found that Complainant’s claim of harassment was comprised of allegedly unfair workloads and assignments, as well as delays in approving requests for leave and telework. The Commission determined that Complainant failed to show that these incidents were sufficiently severe or pervasive to establish a hostile work environment and that the alleged conduct was based on discriminatory animus. As a result, the Commission found that Complainant was not subjected to discrimination or a hostile work environment as alleged. In his request for reconsideration, Complainant expresses his disagreement with the previous decision and mostly reiterates arguments previously made and considered on appeal. The Commission emphasizes that a request for reconsideration is not a second appeal. 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. Complainant has not presented any persuasive evidence to support reconsideration of the Commission's decision. 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. 2019003859 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. 2021001732 3 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 May 20, 2021 Date