Tiffanie S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 5, 2020

2020004735 (E.E.O.C. Nov. 5, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tiffanie S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 2020004735

Appeal No. 2020001640

Agency No. 200J-0655-2020100330

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 2020001640 (July 28, 2020). 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).

ISSUE PRESENTED

The issue presented is whether the Agency’s request for reconsideration demonstrates that the
underlying appellate decision involved clearly erroneous interpretations of material fact or law or
will have a substantial impact on the policies, practices, or operations of the Agency.

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.
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BACKGROUND

On November 20, 2019, Complainant filed an EEO complaint alleging that the Agency subjected
her to discrimination on the bases of disability (environmental allergies – formaldehyde) and
reprisal for prior protected EEO activity when, during a meeting on October 8, 2019,
management threatened to change her duty location to an Agency trailer (which contained
formaldehyde) and denied her reasonable accommodation request.2

The Agency dismissed Complainant’s complaint for failure to state a claim pursuant to 29 C.F.R.
§ 1614.107(a)(1). The Agency reasoned that Complainant’s claim did not rise to the level of a
hostile work environment.

On appeal, the Commission determined that the Agency improperly assessed Complainant’s
complaint as a hostile work environment claim. The Commission found that, in her complaint,
Complainant was alleging that the Agency denied her a reasonable accommodation when it
changed her work location. The Commission concluded that Complainant was “aggrieved” for
the purposes of stating a claim, reversing the Agency’s decision dismissing Complainant’s
complaint and remanding the matter to the Agency. The Commission ordered the Agency to
process Complainant’s claims in accordance with 29 C.F.R. § 1614.108.

ARGUMENTS ON REQUEST FOR RECONSIDERATION

In its request for reconsideration, the Agency contends that the Commission’s decision erred in
stating that Complainant’s duty location was changed during the October 8, 2019, meeting.
According to the Agency, in her complaint, Complainant alleged that, during the during the
October 8, 2019, meeting, her supervisor threatened to move her to a trailer containing
formaldehyde. The Agency also argues that Complainant expressed her desire to withdraw her
EEO complaint to the EEO Counselor because the Agency had reasonably accommodated her by
relocating her to a new space that was not in a trailer. According to the Agency, Complainant
was not aggrieved by the October 8, 2019, meeting under hostile work environment or discrete
act analysis.

In response to the Agency’s request for reconsideration, Complainant contends that after
enduring harassment by her supervisor and by the EEO Counselor, on November 6, 2019, she
emailed the EEO Counselor a signed notice of withdrawal, stating that she was withdrawing her
complaint under distress, with reservations. According to Complainant, the EEO Counselor told
her that he could not accept the withdrawal since she indicated that she had reservations.

2 The Commission has slightly rephrased the framing of the claim from our decision in EEOC
Appeal No. 2020001640, to more accurately reflect that, on October 8, 2019, management
threatened to relocate Complainant to the trailer, but that management did not officially change
her duty location to the trailer on that date. We note that, in alleging that a supervisor threatening
to move her to a trailer containing a known allergen, Complainant states a claim of intentional
discrimination as well as the denial of reasonable accommodation claim.
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Complainant contends that, although the Agency moved her to a new location that was not in one
of the trailers, she still has not been reasonably accommodated by the Agency.

ANALYSIS AND FINDINGS

Upon review, we acknowledge that our appellate decision inaccurately framed Complainant’s
claim by stating that management changed her duty location to an Agency trailer containing
formaldehyde. We have slightly rephrased the claim above to more accurately reflect that
management threatened to relocate Complainant to one of the trailers. However, we conclude
that our decision in EEOC Appeal No. 2020001640 correctly determined that Complainant’s
complaint stated a viable claim of denial of a reasonable accommodation. Regarding the
Agency’s argument on request for reconsideration that Complainant’s complaint fails to state a
claim because she was reasonably accommodated by the Agency, the Commission finds that this
argument addresses the merits of Complainant’s complaint rather than whether it states a viable
claim of discrimination.

We emphasize that a request for reconsideration is not an appeal to the Commission. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch.
9, § VII.A (Aug. 5, 2015). 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. The Agency 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. 2020001640 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: (1) a copy of the Agency’s letter of
acknowledgment to Complainant, (2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and (3) either a copy of the complainant’s request for a
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hearing, a copy of complainant’s request for a final decision, or a statement from the Agency that
it did not receive a response from complainant by the end of the election period.
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.
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 (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.
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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

November 5, 2020
Date