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

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2021001434 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cordell H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Request No. 2022002874 Appeal No. 2021001434 Agency No. 200H-0503-2018103941 Hearing No. 530-2019-00090X DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021001434 (April 14, 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). During the relevant time, Complainant was an applicant for a Clinical Pharmacist position in the Pharmacy Service within the James E. Van Zandt Medical Center in Altoona, Pennsylvania. 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. 2022002874 2 On June 12, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him based on disability (Substance Abuse Disorder) when, effective April 5, 2018, Complainant's tentative job offer made on March 2, 2018, was rescinded due to "unfavorable suitability screening/background check." Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The assigned AJ issued a summary judgment decision, finding no discrimination or unlawful retaliation was established. The Agency then issued a final order implement the AJ’s decision. Complainant appealed. In EEOC Appeal No. 2021001434, the Commission affirmed the Agency's final order which implemented the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. In the instant request for reconsideration, nothing that Complainant has submitted supports a determination that the prior decision affirming the Agency final order was in error. We acknowledge that Complainant argues that EEOC Appeal No. 2021001434 was incorrect when it found that there was not a factually disputed record, however, we do not agree. In his request for reconsideration, Complainant argues that there is a factual dispute as to whether his offer was rescinded due to his prior misconduct or his disability; to this end, he states that there is evidence in the form of an email which indicates that the Agency rescinded his offer due to his short rehabilitation period. Nonetheless, as noted in EEOC Appeal No. 2021001434, Complainant's offer was rescinded due to a prior incident wherein Complainant was removed as a pharmacist for diverting two syringes containing hydromorphone, and thereafter attempting to conceal his misconduct. It was this prior theft, rather than his underlying disability, which the Agency relied on in making their determination. Complainant has not adequately shown that this constitutes an underlying factual dispute. As to Complainant's additional arguments regarding accommodating his disability, we note 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), Chap. 9 § VI.A (Aug. 5, 2015); 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. 2021001434 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2022002874 3 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 September 27, 2022 Date