Felton A.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 31, 2019

2019004790 (E.E.O.C. Oct. 31, 2019)

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

Felton A.,1
Complainant,

v.

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

Request No. 2019004790

Appeal No. 2019001767

Agency No. 200J-0609-2018105714

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Felton A. v. Dep’t of Veterans Affairs, EEOC Appeal No.
2019001767 (Apr. 30, 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, a Housekeeping Aide (Night Shift) Supervisor, WS-3/05, at the Agency's Medical
Center in Marion, Illinois, filed an EEO complaint in which he alleged that the Agency
discriminated against him on the bases of race, color, and in reprisal for prior protected EEO
activity by failing to provide him with official time with which to pursue a previously filed EEO
complaint. The Agency dismissed the complaint on the grounds that it constituted an
impermissible spin-off complaint under 29 C.F.R. § 1614.107(a)(8) as well as for failure to state a
claim pursuant to 29 C.F.R. § 1614.107(a)(1).

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.
2019004790

2
In our previous decision we affirmed the Agency’s dismissal. We noted that Complainant admitted
that he never requested official time and there was nothing in the record reflecting that the Agency
actually denied Complainant official time. Ultimately, the Commission found that the complaint
was properly dismissed for alleging dissatisfaction with the processing of a previously filed EEO
complaint.

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. He has not presented any argument or evidence tending to establish the
existence of either reconsideration criterion. Indeed, his request fails to address the central finding
in our previous decision that the complaint allegation was dismissed because it was a spin-off as
defined by 29 C.F.R. § 1614.107(a)(8). He merely attempts to reargue his appeal on the merits,
raising contentions similar to those 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. 2019001767 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.
2019004790

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

October 31, 2019
Date