[Redacted], Darrin H, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 20, 2023

Appeal No. 2021003927 (E.E.O.C. Mar. 20, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darrin H,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2023000390 Appeal No. 2021003927 Hearing No. 430-2021-00150X Agency No. 200I-0544-02020104443 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021003927 (September 19, 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 worked as a Recreation Therapist at the Agency’s Dorn Medical Center in Columbia, South Carolina. Complainant filed a formal complaint, claiming discrimination on get bases of race, disability, and age. Complainant alleged that he was not upgraded to a GS-11, he was charged absent without leave (AWOL), the Chief of Mental Health Services did not provide another storage area when he notified Complainant to clear out his recreation therapy supplies/equipment, the Clinical 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. 2023000390 2 Psychologist notified Complainant concerning a dress code policy, Complainant notified the Clinical Psychologist and the Mental Health Supervisor that the Clinical Psychologist was creating a hostile work environment, and the Clinical Psychologist informed Complainant that Complainant was entering his case notes wrong. After an investigation, Complainant requested a hearing. The assigned EEOC Administrative Judge (AJ) issued a decision by summary judgment concluding the evidence of record did not establish any discrimination. In so doing, the AJ noted that, while the record reflected that Complainant was subjected to conduct and comments that he did not like, one cannot infer that the conduct or comments were based on a prohibited reason; the alleged actions appear to be Complainant’s disagreement with the Agency’s actions regarding the performance of his Recreation Specialist duties and union duties, his official position status, the storage area, the dress code policy, and the case note policy; and disagreement alone is not sufficient to show discrimination. The AJ also noted that the record showed that Complainant had stated his belief that the Agency’s actions were based upon his whistleblower activities. Thereafter, the Agency issued a final order implementing the AJ’s finding of no discrimination. Complainant appealed. In EEOC Appeal No. 2021003927, the Commission affirmed the Agency’s final order implementing the AJ’s finding of no discrimination. In the instant request for reconsideration, we have carefully reviewed Complainant’s arguments and determine that the matters either were raised or could have been raised below. We note that during the original appeal from the Agency’s final order, Complainant presented extensive arguments, some of which have been replicated in the instant request. We emphasize 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. 2021003927 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. 2023000390 3 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 March 20, 2023 Date