Sandy S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 25, 2018

0520180330 (E.E.O.C. Sep. 25, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sandy S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520180330

Appeal No. 0120162123

Hearing No. 440-2014-00126X

Agency No. 200J-0328-20122655

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120162123 (November 29, 2017).
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 GS-4 File Clerk, filed an EEO complaint in which he alleged that the Agency
discriminated against him on the basis of age (58) when, on March 28, 2012: (1) management
hired three veterans as GS-5 Claims Assistants; (2) management assigned Complainant to train the
three new hires after being informed that he did not have enough tenure to be promoted to the GS-
5 Claims Assistant position; and (3) his third-line supervisor said that he could not read or write
and was illiterate.

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.
0520180330

2
The Agency initially dismissed the complaint for failure to state a claim, but in * * * v. Department
of Veterans Affairs, EEOC Appeal No. 0120122837 (January 28, 2014), we remanded the matter
for investigation. In accordance with our order, the Agency investigated the complaint and
Complainant requested a hearing. An EEOC Administrative Judge (AJ) granted the Agency’s
motion for summary judgment and issued a decision without a hearing finding no discrimination.
In its final order, the Agency implemented the AJ’s decision.

In our previous decision, we affirmed the Agency’s final order. We found that the AJ properly
decided the case without holding a hearing because Complainant failed to present evidence
sufficient to raise a genuine issue of material fact with respect to any of the incidents comprising
his claim. On the merits of Complainant’s disparate treatment claim, we found that he had not
presented any evidence that his age was a motivating factor in the Agency’s actions at issue in his
complaint. As to the remark that Complainant was illiterate, we found that, while the alleged
remark might have been disrespectful, it was neither connected to his age nor severe or pervasive
enough to rise to the level of a hostile work environment.

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), at 9-18 (August 5, 2015); see, e.g., Lopez v. Department of Agriculture, EEOC
Request No. 0520070736 (August 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. He has not presented any argument or evidence tending to
establish the existence of either reconsideration criterion. He merely reargues his appeal on the
merits, raising essentially the same contentions that we rejected in our previous 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. 0120162123 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.

0520180330

3

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

September 25, 2018
Date