0520170524
11-02-2017
Elliot J.,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
Elliot J.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520170524
Appeal No. 0120151804
Hearing No. 443-2013-0060X, 443-2013-00145X
Agency No. 200J06952012104670
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120151804 (July 13, 2017). 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 his consolidated complaints, Complainant worked as a Domiciliary Assistant at the Agency's Clement Zablocki Medical Center in Milwaukee, Wisconsin. Complainant filed three complaints which were consolidated. Complainant alleged he was discriminated against and subjected to a hostile work environment based on reprisal. The complaints were investigated and Complainant requested a hearing.
While the matter was pending before the EEOC Administrative Judge (AJ), the Agency filed a motion for summary judgment which was opposed by Complainant. The AJ granted the motion in part and denied it in part. The issues that went forward to hearing October 27, 2014 and October 28, 2014 were:
1. Whether Complainant was subjected to a hostile work environment based on reprisal when:
a. Effective August 7, 2012, Complainant was temporarily reassigned and effective January 15, 2012, Complainant was permanently reassigned.
b. On October 25, 2012, Complainant was issued a proposed suspension which was served on November 27-29, 2012.
c. From approximately March 12, 2013 through April 22, 2013, Complainant was placed on authorized absence.
d. On November 13, 2013, Complainant's supervisor came into his office, blocked the door cornered him and proceeded to loudly make accusatory remarks.
e. On December 16, 2013, Complainant was threatened with a downgrade in pay.
2. Whether the Agency discriminated against him on the basis of reprisal when Complainant was not selected for the position of Medical Administrative Specialist.
In his decision, the AJ found that Complainant was subjected to retaliation concerning only his proposed suspension (claim 1b) and being placed on authorized absence from March 12, 2012 through April 22, 2013 (claim 1c). Having so found, the AJ awarded back pay and other benefits and $8,000 in nonpecuniary compensatory damages. The AJ also addressed each of the remaining claims, explaining why he did not find discrimination. Our prior decision affirmed the Agency's decision which accepted the findings of the AJ.
In his request for reconsideration, Complainant expresses his disagreement with the previous decision. Complainant argues that there are other Commission cases which awarded complainants more money in compensatory damages, present some documents and arguments also made on appeal, and submitted some medical documents regarding medications issued in January 2017. We note that the AJ took into consideration Complainant's testimony regarding the stress and anxiety that the Agency's actions had caused him.
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.
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. 0120151804 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
To the extent it has not already done so, the Agency is ordered to take the following remedial action:
1. Within 60 days of the date this decision is issued, the Agency shall pay Complainant back pay and any and all other benefits to which Complainant is entitled, including, but not limited to, interest on back pay, night differential, and leave.
2. Within 60 days of the date this decision is issued, the Agency shall pay Complainant $8,000 in nonpecuniary, compensatory damages.
3, Within 180 days of the date this decision is issued, the Agency shall provide eight hours of training on reprisal discrimination to the responsible management officials.
4. Within 60 days of the date this decision is issued, the Agency shall consider taking disciplinary action against the responsible management officials. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. Training is not considered disciplinary action.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include any and all supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Clement Zablocki Medical Center facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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
November 2, 2017
__________________
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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