0520170379
09-05-2017
Wilburn R.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilburn R.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520170379
Appeal No. 0120150810
Agency No. 2003-0671-2013102980
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120150810 (April 28, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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 the previous decision, the Commission affirmed the Agency's final decision finding that Complainant did not prove that the Agency discriminated against him or subjected him to a hostile work environment on the bases of race and religion and in reprisal for prior EEO activity with respect to several matters. We concluded that the Agency articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did not prove that the proffered explanations were a pretext for discrimination. We noted, for example, that Complainant's first-level supervisor (S1) stated that she placed Complainant on sick-leave certification because there was a pattern to his sick-leave usage. His second-level supervisor stated that the Agency charged Complainant with being absent without leave because Complainant did not provide medical documentation to substantiate his use of sick leave.
With respect to Complainant's claim of a hostile work environment, we noted that S1 and the Chief of Logistics Service stated that the Agency police investigated Complainant's allegation that a co-worker tried to hit him with a car. According to S1, "everybody said there was nothing there." We also noted, among other things, that S1 stated that she wrote a report of contact because Complainant had been speaking loudly to a female employee and that she issued him a written counseling about temperature readings because he had missed a few readings. We found that Complainant did not establish that the conduct at issue occurred because of his race, religion, or prior protected EEO activity.
In his request for reconsideration, Complainant asserts that Agency managers singled him out for adverse treatment after he alleged that a co-worker tried to hit him with a car. He submits a number of documents, including copies of several e-mails that he sent to Agency officials.
In response, the Agency argues that Complainant's request does not meet the criteria for reconsideration.
We remind Complainant 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) (rev. Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous 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. His assertion that managers singled him out because of his allegation about his co-worker does not establish that the Agency took the actions at issue because of his race, religion, or prior protected EEO activity.
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. 0120150810 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. 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
_9/5/17_________________
Date
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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