[Redacted], Jack Q., 1 Complainant,v.Denis McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2019005735 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jack Q.,1 Complainant, v. Denis McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021000830 Appeal No. 2019005735 Agency No. 2004-0659-2018105359 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019005735 (Oct. 15, 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). During the period at issue, Complainant worked as a Police Dispatcher at the Agency’s VA Medical Center in Kernersville, North Carolina. On October 2, 2018, Complainant filed a formal EEO complaint claiming the Agency discriminated against him and subjected him to a hostile work environment based on disability when: 1. On June 11, 2018, Complainant’s supervisor (S1), referenced how many times Complainant uses the restroom; 2. On July 11, 2018, S1 denied Complainant’s reasonable accommodation request; and 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. 2021000830 2 3. On July 18, 2018, Complainant was detailed from the Kernersville facility to the Salisbury facility. After an investigation, the Agency issued a final decision concluding Complainant did not establish that he was denied a reasonable accommodation. The Agency further found that Complainant failed to show that the alleged incidents were sufficiently severe or pervasive to establish a hostile work environment and that Complainant failed to show that the conduct at issue was based on his disability. As a result, the Agency found that Complainant was not subjected to discrimination or a hostile work environment as alleged. Complainant filed an appeal. In EEOC Appeal No. 2019005735 (Oct. 15. 2020), we affirmed the Agency’s final decision finding no discrimination. Regarding Complainant’s denial of a reasonable accommodation claim, the Commission found that while Complainant sought to take bathroom breaks whenever he wanted, the Agency denied this request because it was not consistent with the recommendation provided by his physician. According to Complainant’s physician, Complainant was supposed to take his bathroom breaks in regular timeframes that were intended to strengthen his bladder. In the initial decision, the Commission found that the Agency engaged in the interactive process with Complainant and accommodated him when it offered him a reassignment to the Salisbury location. The Commission noted that the Salisbury location, to which Complainant was detailed, had additional staff and could accommodate Complainant’s frequent bathroom breaks. The Commission further found that Complainant failed to establish a hostile work environment based on the determination that Complainant failed to establish that the actions were based on discriminatory animus. In his request, Complainant reiterates arguments made below and restates the allegations in his complaint. In addition, Complainant asserts that the Agency violated his constitutional rights under the Fourth Amendment. The prior decision properly found no discrimination. We remind complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Aug. 5, 2015), Chapter 9. To the extent, Complainant is alleging that the Agency violated his constitutional rights, these matters are outside the jurisdiction of the Commission. 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. 2019005735 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021000830 3 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. 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 March 2, 2021 Date