[Redacted], Daniella H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 7, 2022Appeal No. 2021003070 (E.E.O.C. Nov. 7, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Daniella H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022003379 Appeal No. 2021003070 Hearing No. 530-2019-00323X Agency No. 200H-0541-2018102957 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021003070 (May 5, 2022). 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). At the time of events giving rise to this complaint, Complainant worked as a Health Technician (Optometry), GS-0640-07, at the Agency’s Cleveland Medical Center in Cleveland, Ohio. On June 19, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment based on race (Black), age (50), and in reprisal for prior protected EEO activity when: 1. From March 2017 to March 15, 2018, Complainant’s supervisor, Chief of Optometry: 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. 2022003379 2 a. assigned Complainant a higher workload and assigned her as the only technician in the demanding Retina Clinic, as opposed to non-Black peers; b. constantly watched, and singled out her work ethic and production; c. made comments about her being on probation, that a paper trail was being kept, and that her job was at stake; d. participated in an event on February 26, 2018, that was misconstrued and used against her in termination charges; and 2. Effective March 15, 2018, Complainant was terminated during her probationary period. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. When the Agency failed to issue a final order within 40 days of receipt of the AJ's decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). Complainant appealed. Our decision in EEOC Appeal No. 2021003070 affirmed the Agency’s final order implementing the AJ’s decision finding no discrimination. This request for reconsideration followed. In her request, Complainant limits her argument to the finding of the prior decision with regard to claim 2 involving her termination during her probationary period effective March 15, 2018. Complainant alleges that the prior decision failed to consider her arguments that the Agency’s reasons for its action were pretext for discrimination. However, we find that Complainant has provided no evidence to warrant granting the request. 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 Chap. 9 §VII.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. 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. 2021003070 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2022003379 3 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 (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 November 7, 2022 Date Copy with citationCopy as parenthetical citation