Zachery V.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 13, 2019

2019003618 (E.E.O.C. Sep. 13, 2019)

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

Zachery V.,1
Complainant,

v.

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

Request No. 2019003618

Appeal No. 0120180430

Hearing No. 420-2016-00046X

Agency No. 200I05212015101626

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180430 (April 3, 2019). 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 was employed by the Agency as a Medical Instrument Technician, GS-7/Hybrid
Title 38, at the Agency’s facility in Birmingham, Alabama. Complainant filed an EEO
complaint alleging that the Agency unlawfully retaliated against him when, on February 4, 2015,
he was issued an admonishment after the charges outlined in a proposed admonishment issued on
January 15, 2015, were sustained.

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.
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Our prior appellate decision affirmed the EEOC Administrative Judge’s (AJ) lengthy decision by
summary judgment which found in favor of the Agency, concluding Complainant failed to prove
his discrimination claims. In the decision, the AJ found that Agency management admonished
Complainant because he failed to follow the proper procedures for cleaning endoscopes.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision. Complainant goes into a length recitation of the time line of events, testimony, and
disputes facts. He argues that he made out a prima facie case of reprisal. Regardless, we find, as
did the AJ, that he has not shown that the Agency’s proffered reasons for issuing him the
admonishment were a pretext for retaliation.

We emphasize that a request for reconsideration is not a second appeal to the Commission. See
EEO MD-110, Ch. 9, § VII.A. 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. 0120180430 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.
2019003618

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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 13, 2019
Date