EEOC “substantial evidence” is the standard for an OFO review after a hearing. Complainant requested reconsideration in his Equal Employment Opportunity (EEO) case alleging disability (PTSD, major depression, general anxiety, insomnia, sleep apnea, back and neck problems) discrimination. Following an incident with an Emergency Room nurse, the Agency proposed a 7-day suspension of Complainant. Complainant applied and was approved for 12 weeks of Leave Without Pay under the Family Medical Leave Act (FMLA), and filed for disability retirement to avoid a hostile work environment. Following a hearing, the Administrative Judge issued a decision finding no discrimination, and the EEO’s Office of Federal Operations (OFO) found substantial evidence to support the AJ’s decision on appeal. Complainant petitioned the OFO for reconsideration.

On reconsideration the OFO held that the substantial evidence standard was the appropriate standard of review for the reconsideration rather than a de novo standard. As such, the OFO held that the previous decision did not clearly err in analyzing Complainant’s disability claim, and therefore denied the Complainant’s request for reconsideration.

Complainant v. Department of Veteran Affairs, EEO Appeal No. 0120110465 (November 19, 2014)