[Redacted], Lee R., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 21, 2023

Appeal No. 2021000518 (E.E.O.C. Feb. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lee R.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Request No. 2022004894 Appeal No. 2021000518 Hearing No. 531-2019-00021X Agency No. ARAPG17FEB00265 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021000518 (August 18, 2022). 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). At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-0201-11, for the Agency’s Civilian Human Resources Activity at Aberdeen Proving Grounds, in Maryland. On April 14, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (carpal tunnel syndrome; cubital tunnel syndrome; orthopedic injuries sustained to the back, neck, sinuses, and lungs; neurological conditions; Post-Traumatic Stress Disorder (PTSD); clinical anxiety; 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. 2022004894 2 depression) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On January 9, 2017, Complainant’s Supervisor [(hereinafter “Supervisor-1”)] denied him one hour of sick leave and told him to take nine hours of sick leave instead and was further directed to report to work at the office the next day even though it was his telework day; 2. On January 11, 2017, [Supervisor-1] told Complainant she would no longer permit him to telework three days per pay period and that he could only telework on an ad hoc basis; 3. On January 25, 2017, Complainant’s second-level supervisor [(hereinafter “Supervisor- 2”)] denied his request to telework and told him the only reasonable accommodation he would receive would be an ergonomic chair and workstation; 4. On January 26, 2017, [Supervisor-1] denied Complainant’s request to take an intermediate Management and Employee Relations (MER) training scheduled for June 2017; 5. On February 10, 2017, [Supervisor-1] denied Complainant’s request for a permanent telework schedule; 6. On March 7, 2017, [Supervisor-1] responded to an email Complainant sent to her requesting a telework accommodation by stating she did not think he was qualified to be a GS-11 Labor and Management Specialist; and 7. From January 2017, Complainant was subjected to harassment. Following an investigation, Complainant timely requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Complainant appealed. In EEOC Appeal No. 2021000518, the Commission affirmed the Agency’s final order finding no discrimination based on Complainant’s disabilities or unlawful retaliation. Our prior decision initially found that the Agency accommodated Complainant by first providing him the ability to telework and, subsequently, providing an ergonomic workstation. However, subsequently, Supervisor-1 informed Complainant that she would no longer permit him to telework. The prior decision determined that Complainant has not shown he satisfied the requisite skill, experience, education, and other job-related requirements of the position. He has not established that he is qualified individual covered under the Rehabilitation Act. Therefore, the prior decision concluded that the Agency was not required to provide Complainant with a reasonable accommodation and the Agency did not violate the Rehabilitation Act when Complainant was repeatedly denied telework. 2022004894 3 The prior decision also determined that Complainant failed to establish that the alleged events were sufficiently severe or pervasive enough to create a hostile work environment or that the alleged events we based on his disability or in reprisal for his prior protected EEO activity. Therefore, the prior decision affirmed the Agency’s final decision. In the instant request for reconsideration, Complainant alleged that the prior decision did not address his claim of “unlawful interference with his right to seek accommodations under the Rehabilitation Act.” However, as noted above, the prior decision determined that Complainant failed to show that he was a qualified individual with a disability covered under the Rehabilitation Act or that the Agency violated the Rehabilitation Act. Therefore, upon review, we find that nothing that Complainant has submitted supports a determination that the prior decision affirming the Agency final order was in error. We note 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), 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. 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. 2021000518 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. 2022004894 4 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 February 21, 2023 Date