[Redacted], Rick M., 1 Complainant,v.Lloyd J. Austin, III, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2019005725 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rick M.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Defense Health Agency), Agency. Request No. 2021000770 Appeal No. 2019005725 Hearing No. 531-2017-00326X Agency No. DHANCR-16-0053 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Rick M. v. Dep’t of Defense, EEOC Appeal No. 2019005725 (Oct. 13, 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). During the period at issue, Complainant worked as a Nurse Consultant for Recruiting, GS-12, within the Human Resources (HR) Office of the Walter Reed National Military Medical Center in Bethesda, Maryland. 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. 2021000770 2 On November 25, 2016, Complainant filed a formal EEO Complainant, which was subsequently amended, claiming that the Agency discriminated against him based on disability (anxiety, post- traumatic stress disorder (PTSD), depression) when: a. on September 8, 2016, Complainant’s immediate supervisor, a Human Capital Management Specialist (S1) issued Complainant a letter of warning (LOW); b. on September 16 and 27, 2016, S1 and Complainant’s second-level supervisor, the Deputy HR Chief (S2), denied Complainant’s request for a reasonable accommodation; and c. on September 27, 2016, Complainant’s third-level supervisor, the HR Chief (S3), issued Complainant a notice of termination during his probationary period. After its investigation into the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On May 30, 2019, the AJ issued a decision by summary judgment, over Complainant’s objection, in favor of the Agency. On October 9, 2019, the Agency issued a final order adopting the AJ’s finding of no discrimination. Complainant appealed. In EEOC Appeal No. 2019005725, we determined that the AJ properly concluded there were no genuine issues of material fact requiring a hearing. The prior decision further determined that Complainant did not request a reasonable accommodation. The decision noted that the Agency could not have perceived Complainant’s September 16, 2016 memorandum as a reasonable accommodation request because the document did not identify Complainant’s medical conditions (PTSD, anxiety, or depression) and the document was not accompanied by medical documentation to substantiate Complainant’s need for accommodation. Additionally, the decision explained that Complainant’s memorandum requested support and feedback which could not be reasonably construed as a specific request for concrete change or adjustment at work provided through reasonable accommodation. Regarding the disciplinary actions, the prior decision explained that aside from Complainant’s assertion, there was insufficient evidence to support that management considered Complainant’s medical condition when the LOW was issued. A copy of the LOW reflected that Complainant had, on two occasions, acted “in an unprofessional and rude manner” toward an applicant and a staff nurse. The prior decision further determined that management did not issue the notice of termination based on Complainant’s disability. Specifically, the prior decision noted that S2 testified that Complainant did not disclose his PTSD until after he was presented with a termination notice, and the Supervisory HR Specialist testified that while Complainant had successful performance, his termination was based on his inappropriate conduct. 2021000770 3 In the instant request for reconsideration, Complainant submits a statement expressing disagreement with the appellate decision and reiterates arguments previously made on appeal. However, 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. 2019005725 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. 2021000770 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 March 2, 2021 Date