Samuel H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 29, 2019

2019004090 (E.E.O.C. Aug. 29, 2019)

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

Samuel H.,1
Complainant,

v.

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

Appeal No. 2019004090

Hearing No. 490-2017-00198X

Agency No. 200I-0626-2016101364

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated May 7, 2019, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Support
Assistant at the Agency’s facility in Nashville, Tennessee.

On March 16, 2016, Complainant filed a formal complaint alleging that the Agency subjected
him to a discriminatory hostile work environment on the bases of race (African-American), sex
(male) and/or disability.2 According to a subsequent Report of Investigation, in support of his
claim, Complainant raised the following allegations:

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.

2 The basis of disability first appears in the Report of Investigation.
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1) in January 2015, he was issued a five-day suspension based on an accusation that he had
a verbal altercation with a veteran;

2) a coworker harassed him by calling him “Stoop” in front of staff and veterans, and the
matter was reported to the supervisor, but nothing was done;

3) on December 1, 2015, he was removed from the clinic and PACT team and reassigned to
the Business Office pending an internal fact-finding investigation;

4) on December 1, 2015, the supervisor did not permit complainant to provide his account
of the event;

5) on December 1, 2015, two co-workers gave false statements against complainant of the
December 1 events; and

6) management informed Complainant they were using a past incident he had with a veteran
to show that he had a pattern of negative interactions with veterans.

The Agency dismissed the complaint on May 9, 2016, concluding the formal complaint was
untimely filed. Complainant appealed, and in EEOC Appeal No. 0120162088 (August 24, 2016),
we found that the Agency failed to support its decision concerning the purported untimely filing,
reversed the dismissal, and remanded the complaint for processing.

Thereafter, the Agency sought reconsideration. In EEOC Request No. 0520170254 (June 22,
2017), we noted that in its request the Agency provided additional evidence in support of its
dismissal decision. However, reconsideration was denied based on a determination that the
proffered evidence should not be considered because it had been available during the original
appeal and should have been provided at that time. The matter was again remanded for continued
processing.

On remand, the Agency investigated the complaint and Complainant requested a hearing. On
March 7, 2019, the assigned EEOC Administrative Judge (AJ) issued an Order again dismissing
the complaint as untimely filed. In its May 7, 2019 final order, the Agency adopted the AJ’s
dismissal.

The Commission has long held that under the “law of the case” doctrine, legal or factual
determinations once made are generally binding in subsequent proceedings in the same case. See
Plunkett v. U.S. Postal Service, EEOC Request No. 05920288 (May 14, 1992). The Commission
found in Plunkett that the agency proceeded improperly when it issued a second final decision on
an issue that already had been decided by the Commission in an appeal of the first agency
decision. Applying the law of the case doctrine to the instant matter, we conclude that the AJ
improperly reconsidered the issue of the timeliness of the formal complaint, an issue which had
already been conclusively decided at the appellate level, including when the Agency attempted to
introduce new evidence at the reconsideration stage.
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Accordingly, the Agency’s final order adopting the AJ’s dismissal decision finding the complaint
was untimely filed is REVERSED and the matter is REMANDED to the Agency for further
processing as set forth below.

ORDER

Within thirty (30) calendar days of the date this decision is issued, the Agency shall submit a
renewed hearing request to the EEOC’s Hearings Unit, Memphis District Office, notifying it of
this remand and submitting copies of the complete complaint record. The Agency shall also
submit a copy of this appellate decision with its hearing request. Thereafter, the Administrative
Judge shall continue processing the complaint and issue a decision on the merits of the complaint
in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance
with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
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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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.

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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

August 29, 2019
Date