[Redacted], Ella S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 20, 2022Appeal No. 2020001292 (E.E.O.C. Jan. 20, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ella S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021004225 Appeal No. 2020001292 Hearing No. 480-2016-00804X Agency No. 200P-0600-2015103422 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020001292 (June 21, 2021). 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). During the relevant time, Complainant worked as a Health Technician, GS-0640-7, at the Long Beach VA Medical Center in Long Beach, California. Complainant filed, and subsequently amended, a complaint, claiming harassment and discrimination based on national origin, disability, and in reprisal for prior protected activity. Complainant alleged that she was not selected for the position of Lead Health Technician; she was denied training for Photography (eye); she was approached by her supervisor, who in a rude 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. 2021004225 2 and disrespectful manner asked Complainant how long she had been there, giving blood, and told Complainant she needed to attend a meeting “now” with the Union; she was suspended for seven calendar days; Complainant’s co-worker went through Complainant’s drawers and took personal items and Complainant’s supervisor discouraged Complainant from filing a police report; Complainant’s supervisor made Complainant take leave to donate blood; a co-worker made rude comments to Complainant when Complainant refused to help screed a patient; Complainant’s supervisor ordered Complainant to clean the microwave and refrigerator; Complainant received a performance appraisal which contained false statements from her supervisor; Complainant was denied a reasonable accommodation; and Complainant’s supervisor changed Complainant’s position title from Health Technician to Transporter. After an investigation, Complainant requested a hearing. The assigned EEOC Administrative Judge (AJ) issued a decision by summary judgment concluding the evidence of record did not establish any harassment, discrimination, or reprisal as alleged. In so doing, the AJ found that there was no evidence from which an inference of discrimination could be drawn that the Agency’s actions were based on Complainant’s national origin or disability, or in reprisal for her prior EEO activity. The AJ also found that there was no evidence from which an inference of discrimination could be drawn that Complainant’s co-workers or supervisor harassed her on the bases of national origin, disability, or in reprisal for her prior EEO activity, and further determined the incidents were neither severe nor pervasive enough to constitute a hostile work environment. The AJ acknowledged that Complainant was disabled within the meaning of the Rehabilitation Act, but found the record established that the Agency reasonably accommodated Complainant’s disability, including through reassignment, since her impairments prohibited her from performing the essential functions of her position as a Health Technician in the Eye Clinic, and providing her with special equipment and returning her to her full-tome position as a Health Technician in the Eye Clinic. When the Agency did not issue a final order within 40 days of the AJ’s decision, the AJ’s decision became the final action of the Agency. The instant appeal followed. In EEOC Appeal No. 2020001292, the Commission affirmed the AJ’s decision that had become the Agency’s final order finding no discrimination or reprisal. In the instant request for reconsideration, we have carefully reviewed Complainant’s arguments and determine that the matters either were raised or could have been raised below. We note that during the original appeal from the Agency’s final order, Complainant made many of the same arguments that have been replicated in the instant request. We emphasize 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), 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. Complainant has not done so here. 2021004225 3 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. 2020000952 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 (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 January 20, 2022 Date Copy with citationCopy as parenthetical citation