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

Equal Employment Opportunity Commission

Jan 14, 2021

Appeal No. 2019003594 (E.E.O.C. Jan. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Riley G.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Request No. 2020005347 Appeal No. 2019003594 Hearing No. 460-2018-00340X Agency No. 200306672017102228 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019003594 (July 29, 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 worked as a Chief Nurse, Sterile Processing Services at the Agency’s Overton Brooks VA Medical Center in Shreveport, Louisiana. Complainant filed an EEO complaint alleging that he was discriminated against and subjected to a hostile work environment on the bases of race (African American), disability, and age when: 1. On February 2, 2017, the Nurse Manager (S1) issued Complainant a Letter of Written Counseling; 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. 2020005347 2 2. On April 18, 2017, S1 singled out Complainant during a staff meeting and told him that the way he looked at her was offensive; 3. On April 18, 2017, S1 denied the Complainant’s request to job shadow for training in the case management department; and 4. On April 18, 2017, S1 delayed over three hours in approving Complainant’s Family Friendly Leave request to attend to his father in the emergency room. The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Regarding Claim (1), Complainant attested that he received a Letter of Written Counseling from S1 for excessive use of leave. He attested that he had been very sick and had been to the emergency room. He alleged that S1 was aware of this. He attested that he had been having coughing episodes at work and had been diagnosed with chronic rhinitis and sinusitis. He believed his race was a factor because S1 treated him differently from other staff members. S1 and Complainant met to discuss the Letter of Written Counseling. Complainant attested that S1 told him that he had violated an Agency policy against being absent for thirty-two hours in a pay period. He asserted that he had at least 180 hours of annual leave and 80 to 85 hours of sick leave and was not in jeopardy of going beyond either one of those. He also attested that the Letter of Written Counseling was removed from his file on or about March 1, 2017. S1 attested that the Chief Nurse (S2) instructed the nurse managers to review employees’ absences and provided applicable criteria to use while doing so. S1 attested that she pulled all her employees’ time and attendance records to see if any of her employees met the criteria she had been provided. She attested that Complainant met the criteria and she presented that information to him. However, after she spoke to Human Resources and S2, she was given more specific details about absences per pay period and she removed the letter on March 7, 2017. Complainant was notified of the removal of the letter. A Written Counseling for Leave Usage, dated January 26, 2017, issued to Complainant indicates that, from October 1, 2016 through December 31, 2016, after a review of Complainant’s sick leave usage, he had used 32 hours of sick leave, no annual leave in lieu of sick leave, and no hours of leave without pay (LWOP). It further indicates that he used sick leave 3 out of 7 pay periods, with 1 episode of leave in conjunction with a weekend or holiday. It indicates that if there is no improvement, Complainant may be placed under sick leave restrictions. It also indicates that the letter would be retained for 6 months and may result in disciplinary action. Regarding Claim (2), Complainant attested that, on April 18, 2017, there was a staff meeting during which S1 told him that the way he looked at her was offensive. Complainant attested that he did not know what caused her to make this statement, but he acknowledged that he was upset and unhappy about the way S1 had been treating people. He believed his race was a factor because he was singled out and he believed it was personal. 2020005347 3 S1 attested that, during the meeting, Complainant looked at her in such a way that his eyes were like “daggers.” She asked him about his look, and Complainant replied, “what look.” Regarding Claim (3), Complainant attested that the Agency used job shadowing to prepare an employee for another position. He attested that S1 allowed two of his co-workers, who were both younger and white, to work in day surgery, using job shadowing, and, the following week, there was a job opening in day surgery and one of them was selected. Complainant attested that he did not apply for that position because he was not interested in it. However, Complainant attested that, on March 6, 2017, he requested to be allowed to job shadow as a Case Management Nurse and S1 did not allow him to do so, claiming that she did not know the process. He attested that, on April 7, 2017, a job opening for a Case Management Nurse became available and he applied for it but was not selected. While Complainant believed the selectee was the best person for the job, he was concerned that he was not given the same opportunity to prepare for the position. S1 attested that she had never heard of the Agency requiring someone to job shadow and Complainant’s co-workers did not do any job shadowing. She attested that Complainant’s co- workers were oriented/cross-trained to provide relief to other nurses and were trained to serve as “fill-ins.” S1 attested that she asked every nurse under her supervision if they wanted to be given the opportunity to cross-train and Complainant did not express any interest in being cross-trained. Regarding Claim (4), Complainant attested that, on April 19, 2017, he requested leave for April 20 and 21, 2017 to see his father, who was in an intensive care unit, pursuant to the Agency’s Family Friendly Leave (FFL) program. He attested that he emailed his request and waited three hours without any response before resubmitting his request, with the union included on the email. He attested that S1 responded twelve minutes later, granting his request. Complainant attested that he believed his race was a factor because he has not noticed S1 treating anyone as she has treated him, and she does not treat people who look like her how she treats him, which is like a sub-human. S1 attested that all time and requests for leave go into the Agency’s timekeeping system and she has to go into the system to approve or disapprove a request. She attested that she usually goes into the system once a day, and a three-hour response time was quick. Based on the record establishing these facts, the Agency found that Complainant failed to show he was discriminated against as alleged. Complainant appealed to the Commission. We considered Complainant's allegations of disparate treatment and found that the Agency articulated legitimate, non-discriminatory reasons for the alleged incidents. We also found that, with respect to Complainant's allegation of harassment, he failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus and that the incidents, considered together and taken as a whole, do not rise to the level of a discriminatory hostile workplace. Therefore, we affirmed the Agency's finding that Complainant had not been subjected to harassment or disparate treatment. 2020005347 4 Thereafter, Complainant filed the instant request for reconsideration. In so doing, he reiterated his contentions and the Agency’s findings and argued that the Commission’s decision failed to properly weigh the evidence and apply the facts to the law. He also argued that the Commission failed to consider that the record was inadequately developed. Having considered Complainant’s arguments, we find that his request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law in its conclusion that he failed to establish by a preponderance of the evidence that the Agency subjected him to discrimination or a hostile work environment, or that it would have a substantial impact on the policies, practices or operations of the Agency. We remind Complainant 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) 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. 2019003594 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. 2020005347 5 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 14, 2021 Date