Domingo M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 16, 2020

2020002475 (E.E.O.C. Jun. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Domingo M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Request No. 2020002475 Appeal No. 2019000838 Hearing No. 520-2017-00194X Agency No. 200H-0630-2016103250 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019000838 (January 14, 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 relevant period, Complainant worked as a Contractor at the Agency’s New York Harbor Health Care System facility in New York, New York. On February 24, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against him based on race (Asian), national origin (Indian), religion (Catholic), color (brown), disability (physical), age (over 40), and in reprisal for prior EEO activity when 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. 2020002475 2 1. on February 23, 2016, Complainant was issued a memorandum regarding his performance; 2. on March 3, 2016, Complainant was informed his last day of work would be two weeks from that date; 3. on March 13, 2016, Complainant was verbally and physically attacked by a coworker who threw an ex-ray request and a phone at him and stated, “get the fuck out of here!;” and 4. on March 17, 2016, Complainant was terminated from his contract position as Diagnostic Radiologic Technologist. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The assigned AJ granted the Agency’s August 13, 2018 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on September 25, 2018. In his decision, the AJ noted that Complainant asserted that he was the only person in his protected groups who was terminated and “even if that were true, it cannot overcome the legitimate, non-discriminatory reason put forth for Complainant’s termination - his sleeping on the job.” He noted that the record reflects that 18 contractors, including 5 radiological technicians, had their employment terminated during the time Complainant was with the Agency. The AJ further determined that Complainant was not subjected to a hostile work environment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to provide that the Agency subjected him to discrimination as alleged. An appeal followed. The Commission affirmed the Agency’s final decision adopting the AJ’s finding of no discrimination. In his request for consideration, Complainant claims that he was “illegally and arbitrarily terminated by the Agency” based on his race, national origin, religion, color, disability, age and prior protected activity. Complainant also argues that the AJ erroneously granted the Agency’s Motion for a Decision without a hearing, and the Agency “subsequently erroneously, without any legal evidences and as opposed to evidences as evident on record issued a final order adopting the Ag’s erroneous finding that Complainant failed to prove discrimination as alleged.” Complainant repeats the same arguments made during his original appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. 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. 2020002475 3 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. 2019000838 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 June 16, 2020 Date