Man H.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 16, 2017

0520160487 (E.E.O.C. Feb. 16, 2017)

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

Man H.,1
Complainant,

v.

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

Request No. 0520160487

Appeal No. 0120160300

Agency No. 200P-0691-2015104078

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in EEOC Appeal No.
0120160300 (January 14, 2016). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision 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).

In the underlying complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of race, sex, disability, age, and reprisal when: (1) beginning
December 2014 until present, his request for a reasonable accommodation has been delayed;
(2) on June 24, 2015, he was charged 4.75 hours of Absence Without Leave; and (3) on July
21, 2015, his request for annual leave and Leave Without Pay was denied.

Our previous decision reversed the Agency’s dismissal of the formal complaint, which was
dismissed, in relevant part, on the basis that Complainant raised the same matter in a
previously filed EEO complaint (Agency Case No. 200P-0691-2015101811). We concluded

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.
0520160487

2
that the record was devoid of evidence to support the Agency’s claim, including a copy of the
complaint in Agency Case No. 200P-0691-2015101811. Accordingly, we found that the
Agency failed to meet its burden of proof.

In its request to reconsider, the Agency argues that our previous decision constitutes an
erroneous interpretation of law and material fact, pointing out that the claims are in fact
duplicative. However, for the first time, the Agency herein supplies documentary evidence in
support of its claim. As noted, the Agency has the burden of proof to support its dismissal of a
complaint on procedural grounds. Linn A. v. Social Security Administration, EEOC Appeal
No. 0120161923 (Aug. 19, 2016). Since the Agency did not meet its burden previously, our
previous decision thus ruled correctly.2

The Agency also argues that the previous decision will have a substantial impact upon its
policies, practices, and operations by undermining its ability to discharge its functions
concerning acceptance and dismissals of complaints. We again disagree. All that the Agency
needs to do to avoid future outcomes like the one now before us is to justify its procedural
dismissal with supporting evidence, which it did not do when it had the opportunity. See
Margorie L. v. Dep’t of Veterans Affairs, EEOC Request No. 0520170034 (Jan. 25, 2017).

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. 0120160300 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 (E1016)

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.

A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

2 The Agency is advised that it may wish to consolidate the processing of the instant complaint
with that of Agency Case No. 200P-0691-2015101811, under 29 C.F.R. § 1614.606.
0520160487

3
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. 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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. 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
0520160487

4
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 16, 2017
Date