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

Equal Employment Opportunity Commission

Feb 23, 2023

Appeal No. 2021001693 (E.E.O.C. Feb. 23, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harlan P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022005016 Appeal No. 2021001693 Hearing No. 430-2016-00191X Agency No. 2004-0652-2015103878 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021001693 (August 22, 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). At the time of events giving rise to this complaint, Complainant worked as a Maintenance Worker, WG-08, at the Richmond VA Medical Center in Richmond, Virginia. On July 18, 2015, Complainant filed an EEO complaint alleged the Agency subjected him to discrimination and a hostile work environment based on his race (African-American) and reprisal (prior EEO activity), as evidenced by the following events: 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. 2022005016 2 1. On September 14, 2014, management was provided a copy of a CD in which General Foreman for Engineering Services [“General Foreman”] referred to African-Americans as “buckwheats”. for Engineering Services [“General Foreman”] referred to African- Americans as “buckwheats”. 2. On February 4, 2015, the local news station aired a video of General Foreman making racial comments and referring to African-Americans as “buckwheats” and Complainant believes one of the African-Americans the General Foreman was referring to was Complainant. 3. On June 8, 2015, Complainant was not selected for the position of Pipefitter, VVG-4204- 10, vacancy announcement VHA-652-15-MVM- 130811-BU. 4. On June 11, 2015, Complainant was not selected for any of the four Maintenance Mechanic, WG-4749-09, positions advertised under vacancy announcements VHA-652- 15-MVM-1321753-BU and VHA-652-15-MVM-1322213-BU. 5. On June 23, 2015, Maintenance Mechanic Supervisor looked at Complainant and said, “Look at [Complainant] sitting there, looking like a raccoon eating shit.” 6. On November 10, 2015, Complainant was not selected for the position of Maintenance Mechanic, vacancy number ANS-15-DKO-15000447-BU. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on October 5, 2018, and on November 26, 2018, the AJ issued a bench decision finding that the Agency had not discriminated against Complainant. The Agency then issued a final order implement the AJ’s decision. Complainant appealed. In EEOC Appeal No. 2019002209 (Sept. 22, 2020), we found that the AJ’s decision finding of no discrimination was supported by substantial evidence and should be upheld. However, we also concluded that the evidence showed that the General Foreman also made references to Complainant’s prior EEO activity and settlement activity, and the AJ did not address whether the act of disclosing Complainant’s prior EEO activity amounted to unlawful retaliation in violation of Title VII. We concluded the General Foreman’s disclosure of Complainant’s prior EEO activity amounted to unlawful retaliation in violation of Title VII and modified the Agency’s final order as such. This issue was remanded to the Agency for an investigation of Complainant’s entitlement to compensatory damages for the unlawful disclosures. Complainant, through counsel, was also directed to submit a request for attorney’s fees. The Agency issued a final order on January 15, 2021, awarding Complainant $8,500 in non- pecuniary compensatory damages and rejecting his request for attorney’s fees. The Agency awarded compensatory damages based on Complainant’s evidence he submitted and the Commission’s awards in cases involving harm of a similar nature and severity. 2022005016 3 The Agency also reasoned that Complainant was not entitled to attorney’s fees because he only prevailed on a claim raised by the Commission itself and not by Complainant or his attorney, and as such, Complainant was not a “prevailing party”. Complainant appealed the Agency’s award of compensatory damages. On appeal. Complainant argued that the Agency should have awarded him $175,000 in damages and his requested attorney’s fees. In response, the Agency maintained that its award of compensatory damages was reasonable and consistent with Commission precedent. Further, it reiterated that Complainant was not entitled to attorney’s fees because none of the requested fees relate to a successful claim. In EEOC Appeal No. 2021001693, the Commission affirmed in part and reversed in part the Agency’s final order. As to Complainant’s entitlement to nonpecuniary compensatory damages, the prior decision held that the Agency’s award of $8,500 was appropriate based on our cases involving similar nature and duration of harm in the context of the Title VII violation by the supervisor. However, as to the Agency’s decision regarding attorney’s fees, the prior decision found that Complainant, in fact, was a prevailing party for the purposes of awarding attorney’s fees. Therefore, the prior decision remanded the case to the Agency to allow Complainant’s attorney to submit to the Agency a verified statement of the fees related to the finding of unlawful retaliation and any success achieved in the processing of EEOC Appeal No. 2021001693. The instant request for reconsideration followed. In his request, Complainant argues that the prior decision should be reversed solely as to the issue of compensatory damages. He maintains that the award should be commensurate with his injuries as laid out in his prior submissions in EEOC Appeal No. 2021001693. In response to the request, the Agency asks that the Commission deny Complainant’s request as he merely disagrees with the appellate decision and his request is merely a second appeal of the Agency’s final order. In the instant request for reconsideration, nothing that Complainant has submitted supports a determination that the prior decision modifying the Agency final order was in error. 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. 2021001693 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2022005016 4 ORDER 1. Within thirty (30) calendar days of the date this decision is issued, Complainant’s attorney shall submit a petition to the Agency - not this Commission - for legal fees and costs related to the finding of unlawful retaliation and any success achieved in EEOC Appeal No. 202100169, and pursuant to the guidance in 29 C.F.R. § 1614.501(e). 2. Within sixty (60) calendar days of the date the fee petition is received by the Agency, the Agency is ordered to review Complainant's fee petition and issue a final decision on the amount of fees and costs to be awarded, with appropriate appeal rights to this Commission. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 2022005016 5 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 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 February 23, 2023 Date