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

Equal Employment Opportunity Commission

Jul 22, 2021

Appeal No. 2020001355 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Don F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021002990 Appeal No. 2020001355 Hearing No. 430-2018-00381X Agency No. 2004-0558-201704573 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020001355 (March 23, 2021). 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 period at issue, Complainant worked as a Food Service Worker, WG-7408-03, at the Agency’s Medical Center in Durham, North Carolina. 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. 2021002990 2 On November 22, 2017, Complainant filed a formal EEO complaint alleging he was subjected to discrimination and a hostile work environment by the Agency based on race (African American) and disability (finger laceration, lower back strain, left shoulder pain) when: 1. on August 5, 2017, Complainant was told to use both hands while he worked in the food line, and if he did not comply, he would be written up; 2. on August 5, 2017, Complainant was told to put a beard guard although another co- worker was not told to do the same; 3. on August 9, 2017, Complainant was placed on Absence without Leave; 4. on September 16, 2017, the Service Chief informed Complainant he could not take 15 minutes to do his hand exercises per his physician’s recommendation; 5. on September 18, 2017, Complainant was charged fifteen minutes of Absence without Leave; 6. on September 22, 2017, the Service Chief told Complainant to pick up a piece of paper off the floor after he threw it at him; 7. on October 30, 2017, Complainant’s first-line supervisor adjusted the length of time for Complainant to do his hand exercises as specified by his physician; and 8. on October 25, 2017, Complainant’s second-line supervisor threatened Complainant with a letter of written counseling for not following instructions. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objectives, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment and issued a summary judgement decision on December 6, 2019, finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The prior appellate decision affirmed the AJ’s determination that Complainant failed to prove his discrimination claims. In his request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during his original appeal. 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. 2021002990 3 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. 2020001355 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 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 July 22, 2021 Date