0520120328
11-30-2012
Patrick McComas, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Patrick McComas,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120328
Appeal No. 0120111806
Agency No. 200H-0581-2011100688
DENIAL
Complainant timely requested reconsideration of the decision in Patrick McComas v. Department of Veterans Affairs, EEOC Appeal No. 0120111806 (Feb. 10, 2012). 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(b).
Our previous decision affirmed the Agency's dismissal of Complainant's formal EEO complaint for failure to state a claim. Complainant alleged that the Agency subjected him to a hostile work environment. He asserted that his crew leader (S1) twice asked him for his ex-wife's (W1's) telephone number. Complainant also asserted that, after he observed S1 and W1 together, Agency police asked him to identify W1 on a video tape showing S1 and W1 enter a closet. According to Complainant, the police told him that S1 kissed and groped W1 and paid her money.
In affirming the dismissal of the complaint, our previous decision found that the conduct described by Complainant was not so severe or pervasive that it altered the terms and conditions of his employment. The decision concluded that the complaint failed to state a claim because Complainant did not show that he suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy.
In his request for reconsideration, Complainant argues that the incidents were severe and caused him emotional distress. He asserts that he was so upset that he quit his job but returned after two weeks away from work.1
We remind Complainant that 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. Although he was understandably offended by the vulgar conduct he described, Complainant has not shown that the conduct was sufficiently severe or pervasive that it altered the terms and conditions of his employment. Complainant has not demonstrated that the previous decision clearly erred in finding that he failed to raise an actionable claim of harassment.
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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120111806 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 30, 2012
Date
1 Complainant also asserts that, after his return to work, a substance smelling like urine was poured on his locker and personal items, and a friend of S1 called him names in front of his co-workers. Those matters were not the subject of this complaint. Should Complainant wish to pursue these claims, he should initiate EEO Counseling on them. For timeliness purposes, the date of initial contact is deemed to be the date on which the instant request was filed, unless Complainant can show that he initiated counseling on the claims at an earlier date.
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0520120328
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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