Billie M., Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 9, 20170520170283 (E.E.O.C. Aug. 9, 2017) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billie M., Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Request No. 0520170283 Appeal No. 0120151617 Hearing No. 460-2012-00089X Agency No. 2003-0362-2011101062 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120151617 (March 20, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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 Program Support Clerk at the Agency’s Regional Office in Houston, Texas, filed an EEO complaint in which he alleged that his first and second-line supervisors discriminated against him on the bases of sex (male) and disability in connection with various work-related instructions and admonitions. The Agency investigated the complaint and Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ issued a decision by summary judgment in favor of the Agency. In our previous decision, we affirmed the Agency’s final order implementing the AJ’s decision finding no discrimination. 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. 0520170283 2 In his request for reconsideration, Complainant appears to be arguing that the investigator did not take the affidavits of several witnesses whose statements, had they been made a part of the evidentiary record, would have resulted in a favorable outcome in his case. However, he has not presented any argument or evidence tending to show that his request meets either of the criteria for reconsideration listed above. He merely challenges the investigator’s decision not to take statements from several potential witnesses. 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 (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. We note that Complainant did not raise arguments about the alleged inadequacy of the investigation in his initial appeal, and that as Complainant requested a hearing, the discovery process was available to him in order to supplement the record and address those alleged inadequacies. 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. 0120151617 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. 0520170283 3 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 August 9, 2017 Date Copy with citationCopy as parenthetical citation