Emmitt E.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 23, 2020

2020002786 (E.E.O.C. Sep. 23, 2020)

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

Emmitt E.,1
Complainant,

v.

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

Request No. 2020002786

Appeal No. 2019002591

Hearing Nos. 430-2015-00175X,
430-2016-0023

Agency Nos. 2004-0652-2014103993,
2004-0652-2015108988

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Emmitt E. v. Dep’t of Veterans Affairs, EEOC Appeal No.
2019002591 (Jan. 23, 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).

In his underlying complaints, Complainant, a GS-15 Medical Director at the Agency’s VA Medical
Center in Richmond, Virginia, claimed that he was subjected to discrimination and a hostile work
environment on the bases of his sex (male), sexual orientation, and in reprisal for his prior protected
EEO activity.

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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Complainant further claimed that as a consequence of the ongoing harassment he was
constructively discharged on July 17, 2014. Complainant also claimed that on or about May 7,
2015, Agency officials submitted a negative reference to Santa Rosa Memorial Hospital that
resulted in a denial of Complainant’s application for medical staff membership and privileges, and
a denial of employment at Annadel Medical Group, a subcontractor to Santa Rosa Memorial
Hospital.

Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). The AJ assigned to the matter consolidated the complaints and held a hearing.
Subsequent to the hearing, the AJ issued a decision finding that Complainant failed to establish
that he was subjected to discrimination or a hostile work environment as alleged. The Agency
issued a final order wherein it fully implemented the AJ’s decision.

On appeal, the Commission affirmed the Agency’s final order. We found that substantial record
evidence supported the AJ’s finding that Complainant did not establish that he was subjected to
discrimination, reprisal, or a hostile work environment as alleged.

In his request for reconsideration, Complainant expresses his disagreement with the appellate
decision and reiterates many arguments previously made on appeal. The Commission emphasizes
that a request for reconsideration is not a second appeal. 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. We find that Complainant has not presented any
persuasive evidence to support reconsideration of the Commission’s decision. Throughout his
request for reconsideration, Complainant often repeats verbatim the arguments he presented on
appeal. Complainant has failed to establish that he was subjected to discrimination, reprisal, or a
hostile work environment as alleged.

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. 2019002591 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.
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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. 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 23, 2020
Date