[Redacted], Colby S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2022000976 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colby S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Request No. 2022003458 Appeal No. 2022000976 Agency No. 200P-0691-2021105616 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Colby S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022000976 (Apr. 18, 2022). 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). On October 15, 2021, Complainant filed a formal complaint alleging the Agency subjected him to discrimination based on religion (Christian) when, on September 9, 2021, he received a copy of VA Directive 1193 indicating that Agency employees had to be vaccinated against the Covid- 19 virus or submit to additional masking requirements and participate in weekly Covid testing. Complainant also asserted that, as a result of contracting Covid-19, he has developed natural antibodies against virus, making vaccination, masking or testing in his case unnecessary. 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. 2022003458 2 He attached information from numerous scientific studies concerning immunity to Covid-19 as part of his complaint. The Agency dismissed the complaint for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). Complainant appealed, and the Commission’s prior decision affirmed the Agency’s decision. In the prior decision, we note that Complainant asserted that he was granted a religious exemption from being vaccinated and that Complainant was alleging that the mere existence of the Directive was causing him to be aggrieved. Since the Agency never enforced the Directive nor has Complainant ever been subjected to any of the Directives requirements, the Commission found Complainant had not alleged a present harm or loss to a term, condition, or privilege of his employment for which there is a remedy. In his request, Complainant, reiterating arguments he previously made, raises, for the first time, new subsequent incidents. Also, Complainant, for the first time, indicates that he was discriminated against based on his disability concerning the instant complaint. We cannot entertain these matters in a request for reconsideration. In his request, Complainant provides no evidence to warrant granting his request. The Commission emphasizes 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) (Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). 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. 2022000976 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. 2022003458 3 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 September 29, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Daniel R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Request No. 2022003459 Appeal No. 2021005232 Agency No. HS-FEMA-00352-2018 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021005232 (May 26, 2022). 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). For the following reasons, we DENY the request. At the time of events giving rise to this complaint, Complainant worked as a Security Specialist (Reservist), IT-0080-02. He held a series of temporary appointments. On February 21, 2016, he was appointed Reservist Security Manager within the Security Cadre of the Field Operations Division. His appointment would expire on March 31, 2018. His position was located within the Office of the Chief Security Officer in Washington D.C. 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. 2022003459 2 On December 4, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), disability (residual effects of knee and lower-back injuries; post-traumatic stress disorder), and reprisal (prior protected EEO activity) when: 1. On September 27, 2017, management terminated Complainant from his position, effective September 30, 2017; and 2. On unspecified dates, management denied complainant’s request for a local deployment as a reasonable accommodation.2 At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the matter ultimately issued a summary judgment decision in favor of the Agency, finding that Complainant was not subjected to discrimination or reprisal as alleged. After the Agency issued a final order fully implementing the AJ’s decision, Complainant appealed the Agency’s final order to the Commission. On May 26, 2022, we issued an appellate decision on the merits of the complaint. See Daniel R. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021005232 (May 26, 2022). In our decision, we found that the AJ properly found that Complainant had not been subjected to discrimination, as the record persuasively showed that management had legitimate, nondiscriminatory reasons for removing Complainant from federal service due to his repeated refusal to go on deployments in support of the Agency’s mission. In reaching this conclusion, we considered Complainant’s contention that management treated a Caucasian comparator more favorably by allowing that individual to decline deployment; however, we ultimately found that Complainant failed to present any evidence, beyond his own assertions, that contradicted the legitimate, nondiscriminatory reasons that management presented. We also considered Complainant’s denial of reasonable accommodation claim. Having reviewed the record, we found that the preponderant evidence failed to persuasively show that Complainant had been unlawfully denied reasonable accommodation, as the undisputed record showed that Complainant did not submit any medical documentation to establish that he was medically incapable of going on deployment. In response to our unfavorable decision, Complainant filed the instant request for reconsideration. 2 The parties attempted to settle the complaint but an executive order effectively precluded implementation of a key term of the settlement agreement: changing Complainant's SF-50 to reflect a resignation rather than a termination. Consequently, in Trey M. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019003052 (Aug. 14, 2019), the Commission ordered the Agency to resume processing of the underlying complaint. 2022003459 3 In requesting reconsideration, Complainant argues, in relevant part, that the appellate decision clearly erred in failing to consider his status as a 100 percent disabled veteran. He emphasizes that the Agency has been aware of his status as a disabled veteran since 2015. Complainant also argues that the Agency representative admitted during the settlement process that the Agency failed to properly consider his status as a disabled veteran. Lastly, Complainant argues that his refusal to go on deployment to Louisiana in July 2017 should not have counted against him because he had been on approved Extended Reservist Leave (ERL) and had been instructed to stand down after his wife was involved in a car accident.3 The Agency opposes Complainant’s request for reconsideration. In opposing the request, the Agency emphasizes, in relevant part, that Complainant was not on ERL at the time he declined the deployment to Louisiana and was only ordered to stand down after he had refused the deployment. After reviewing the previous decision and the entire record, we find that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is our decision to deny the request. In reaching this conclusion, we recognize that Complainant is a 100 percent disabled veteran. While we acknowledge that the appellate decision made no mention of Complainant’s status as a 100 percent disabled veteran, we are disinclined to find the appellate decision to be clearly erroneous, as the Commission has long held that a finding of disability for the purposes of VA compensation benefits is not the same as a finding of disability under the Rehabilitation Act. See Gregory F. v. Dep’t of Vet. Affs., EEOC Appeal No. 0120170798 (Mar. 8, 2019). Having reviewed the record, we too find no evidence in the record showing that Complainant was medically incapable of deploying in support of the Agency’s mission. We also find no persuasive evidence showing that Complainant was on ERL in July 2017. For these reasons, we concur with the appellate decision’s ultimate conclusion that the Agency properly denied Complainant’s reasonable accommodation request for lack of relevant medical documentation and had legitimate, nondiscriminatory grounds for removing him. We therefore DENY the request. The decision in EEOC Appeal No. 2021005232 remains our decision. There is no further right of administrative appeal. 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. 3 Following the submission of his initial appellate statement, Complainant uploaded two additional statements on July 4, 2022. As our regulations do not allow for the submission of multiple briefs, we will only consider Complainant's initial appellate brief. See 29 C.F.R. § 1614.403(d); see also Rios-Ortega v. Dep’t of Def., EEOC Appeal No. 0120111979 (Nov. 5, 2012) (declining to address complainant's submission of multiple briefs). 2022003459 4 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 September 30, 2022 Date