Kevin B.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 17, 2016

0520160038 (E.E.O.C. Feb. 17, 2016)

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

Kevin B.,1
Complainant,

v.

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

Request No. 0520160038

Appeal No. 0120130833

Hearing No. 480-2012-00123X

Agency No. 200P-0377-2011-102713

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested reconsideration of the decision in EEOC Appeal No. 0120130833
(September 18, 2015). 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 his underlying complaint, Complainant alleged that the Agency subjected him to unlawful
discrimination on the bases of his race, sex, and reprisal for prior protected EEO activity when
on or about May 2, 2011, management removed his collateral duty as coordinator of the
Minority Veterans and Native American Veterans Outreach Program. Following an
investigation, Complainant requested a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). The AJ found that, after viewing the evidence in a
light most favorable to Complainant, a decision without a hearing was appropriate as there
were no genuine issues of material fact in dispute. The AJ issued a decision finding that

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.
0520160038

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Complainant failed to show that he was subjected to unlawful discrimination. In its final order
the Agency adopted the AJ’s finding of no discrimination. On appeal, the Commission
affirmed the Agency’s final order.2

In his request for reconsideration, Complainant largely reiterates arguments made and fully
considered on appeal. Accordingly, 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. 0120130833 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

2 On appeal, Complainant attempted to raise new claims of discrimination for the first time. In
our decision, we noted that if Complainant wishes to pursue these claims, he must initiate
contact with an EEO counselor as the Commission has long held that a complainant may not
raise a new claim for the first time on appeal. See, e.g., Torres v. U.S. Postal Service, EEOC
Appeal No. 01934108 (June 10, 1994).

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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, Director
Office of Federal Operations

February 17, 2016
Date