EEOC Appeal 2020001070

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brain M., 1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 2020001070
Appeal No. 2019004249
Agency No. 200H-0518-2018103235
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Brain M. v. Dep’t of Veterans Affairs, EEOC Appeal No.
2019004249 (Oct. 23, 2019). 	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).
Complainant, a Chaplain at the Agency’s Memorial Veterans Hospital in Bedford, Massachusetts,
filed the underlying complaint wherein he claimed that he was discriminated against and subjected
to a hostile work environment on the bases of his national origin (Pakistani) and in reprisal for his
prior protected EEO activity when:
1. 	From February 2018 and ongoing, the Chief of the Chaplain Service and a Registered
Nurse created a hostile work environment to include the following events: in February
2018, Complainant was accused of not servicing a ward and only being there for five
minutes despite his evidence to the contrary; Complainant was scolded for not
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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providing spiritual services in Building 62; in March 2018, the Chief interrogated
Complainant during a staff meeting and “micromanages” Complainant and no other
staff requiring Complainant to provide duplicative progress notes; and questioned
Complainant why he reported the Registered Nurse to the Agency police;
2. 	In March 2018, the Associate Chief of Patient Care Services ordered a fact-finding to
include Complainant for alleged unprofessional conduct and accusations of improper
documentation;
3. 	On or about May 29, 2018, the Chief issued Complainant a Notice of Proposed
Removal;
4. 	Effective August 23, 2018, the Associate Chief issued Complainant a notice of
temporary reassignment out of patient care and assigned him to administrative duties;
and
5. 	Effective September 13, 2018, Complainant was removed from federal service.
The Agency issued a final decision wherein it dismissed the complaint pursuant to 29 C.F.R. §
1614.107(a)(4) on the grounds that Complainant filed an appeal with the Merit Systems Protection
Board (MSPB) on September 25, 2018. 	The Agency determined that Complainant elected to
pursue the non-EEO process when he filed an MSPB appeal on the same claims as his EEO
complaint.
In our previous decision, the Commission affirmed the Agency’s final decision in part and reversed
the final decision in part. We determined that an MSPB Initial Decision issued on March 22, 2019
(Docket No. PH-0714-18-0490-I-1) upheld the Agency’s decision to remove Complainant (claims
(1), (2), (3), and (5)). 	We further determined Complainant had petitioned the Commission for
review of that MSPB decision and the Commission concurred in the MSPB’s finding of no
discrimination. Complainant v. Dep’t of Veterans Affairs, EEOC Petition No. 2019003300 (July
11, 2019). 	Thus, we found that the Agency properly dismissed claims (1) – (2), (3) and (5) as
these claims had been adjudicated. 	However, with regard to claim (4), we determined that the
August 23, 2018 temporary assignment was not addressed in the MSPB appeal. As a result, we
reversed the Agency’s dismissal of claim (4) and remanded it to the Agency for further processing.
In his request for reconsideration, Complainant contends that his removal was due to reprisal.
Complainant references a civil action that he states he mistakenly filed in the United States District
Court for the Northern District of New York. 	However, it is evident that this civil action was
regarding EEOC Petition No. 2019003300, and not our previous decision in the instant matter. In
response, the Agency asserts that Complainant failed to establish any of the criteria that might
warrant reconsideration.
The Commission emphasizes that a request for reconsideration is not a second appeal. 	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.

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We find that Complainant has not presented any persuasive evidence to support reconsideration of
the Commission’s decision.
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. 2019004249 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 claim in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claim 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.
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).

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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 (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
August 24, 2020
Date