Omer P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 7, 2019

2019002623 (E.E.O.C. Aug. 7, 2019)

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

Omer P.,1
Complainant,

v.

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

Request No. 2019002623

Appeal No. 2019001108

Hearing No. 430-2017-00217X

Agency No. 2001-0319-2016104347

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Omer P. v. Dep’t of Veterans Affairs, EEOC Appeal No.
2019001108 (Mar. 14, 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 GS-6 Claims Assistant at the VA Regional Office in Columbia, South Carolina,
filed an EEO complaint alleging that the Agency discriminated against him based on race (African-
American), national origin (Haitian), age (over 40), and in reprisal for prior protected EEO activity
when he was notified that he was not considered for the position of Veterans Service
Representative, advertised under Vacancy Announcement No. 1650982, because his application
was incomplete.

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.
2019002623

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Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). The AJ assigned to the matter granted the Agency’s motion for summary judgment
and issued a decision finding that Complainant has not been subjected to discrimination or reprisal
as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision.

In our appellate decision, the Commission affirmed the final order finding that the Agency
articulated legitimate, nondiscriminatory reasons for not selecting Complainant. Specifically,
Complainant failed to submit a complete application, and the Agency did not review or consider
incomplete applications. In doing so, the Commission rejected Complainant’s argument that the
Agency considered an application from a female candidate despite that application being
incomplete. The Commission noted that the record showed the candidate submitted a complete
application.

In his request for reconsideration, Complainant argues that the Commission incorrectly identified
the candidate as a female candidate; it was really a male candidate. However, Complainant
concedes this fact to be irrelevant. Complainant further argues that the selectee for the position
did not meet the time-in-grade requirement.

The Commission emphasizes 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), at 9-18 (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. Complainant
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. 2019001108 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.
2019002623

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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

August 7, 2019
Date