[Redacted], Eve E., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 16, 2020

Appeal No. 2019001643 (E.E.O.C. Nov. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eve E.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Request No. 2020004609 Appeal No. 2019001643 Agency No. 200P-0010-2017104332 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Eve E. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001643 (June 30, 2020). 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 Contract Specialist for the Supply Team at the VHA Service Area Office West in Mesa, Arizona, filed an EEO complaint on October 12, 2017, wherein she claimed that she was subjected to discrimination and a hostile work environment on the basis of her disability (depression, anxiety) when: 1. From September 16, 2016 to August 20, 2017, Complainant was subjected to harassment which included, but was not limited to the following matters: being yelled at by her Supervisor who was the Supply Branch Chief (Chief); being accused of getting the Chief in trouble; being called by the wrong first name; hearing that the Chief 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. 2020004609 2 no longer considered her a friend; being singled out by the Chief; being told by the Chief that he did not care what was wrong with her and that she needed to “figure out how to fix it” and come to work; having the Chief instruct her not to contact him by his personal phone; having the Chief direct her not to contact other branch chiefs to request leave and to just leave him a voicemail message; having the Chief unnecessarily include upper management on her emails; having the Chief hang up on her when she tried to call to request leave; and having her second-level Supervisor, the Division Chief, notify her that she did not have an equal amount of workload assigned as the other team members; 2. From September 30, 2016 through October 3, 2016, the Chief allowed her to work without compensation; 3. In October 2016 and June 2017, her advanced sick leave requests were denied; 4. Between October 18, 2016 and December 13, 2016, she was charged Absent Without Official Leave (AWOL) by the Chief for multiple days; 5. From October 26, 2016 through January 5, 2017, management did not formally approve her leave request and the Chief claimed that she must have taken the written request from his desk; 6. On November 30, 2016, the Chief denied her annual leave request for December 1, 2016; 7. On December 8, 2016, the Chief issued her a proposed reprimand, which was sustained on January 12, 2017; 8. On January 13, 2017, the Chief discontinued her telework privileges; 9. On January 17, 2017, the Chief terminated her ability to work a compressed work schedule; 10. On March 9, 2017, the Chief charged her sick leave despite her requesting leave without pay; 11. On March 17, 2017, the Chief denied her request to correct her timecard when she was charged leave during her lunch break; 12. On March 29, 2017, the Division Chief denied her reassignment request; 13. On May 5, 2017, she was rated “Unsuccessful” during her mid-year review; 14. On May 31, 2017 and June 2, 2017, she was charged AWOL on previously approved leave; 15. On June 9, 2017, the Division Chief informed her that she could not be transferred to the Prosthetic Team regarding a request she made on June 5, 2017; 16. On July 6, 2017, she requested to the Chief that she be reassigned to a vacant position in the Phoenix office, and on July 7 and 10, 2017, the Chief informed her that he had already denied the request; 17. On July 18, 2017, she requested a reasonable accommodation and no action was taken by management until after August 1, 2017; and 18. On August 20, 2017, she was removed from federal service based on a proposed removal issued on August 1, 2017. 2020004609 3 Following an investigation, Complainant requested that the Agency issue a final decision. The Agency issued a final decision finding no discrimination. In the appellate decision, the Commission found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to rebut as pretextual. Further, the Commission concluded that Complainant was not denied reasonable accommodation as she was offered alternative accommodations than those requested, and Complainant failed to show that those alternative accommodations were ineffective. Finally, the Commission found that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment and Complainant failed to demonstrate that the conduct at issue was based on discriminatory animus. As a result, the Commission found that Complainant was not subjected to discrimination or a hostile work environment as alleged. In her request for reconsideration, Complainant argues that she filed a timely brief on appeal which the previous decision failed to take into consideration. Complainant contends that the Chief changed the leave policies specifically for her and to her detriment. Complainant states that she had been taking leave in the same manner for seven years. Complainant maintains that the change in leave policy led to her inflated number of AWOLs and a perceived attendance issue which in turn directly led to her negative performance rating, the discontinuation of her telework and her compressed work schedule, the denial of her request to be reassigned to a different team, and ultimately her termination. In response, the Agency asserts that Complainant failed to meet either of the criteria for a request for reconsideration, even considering the brief she filed in support of her appeal. The Commission emphasizes that a request for reconsideration is not a second appeal. 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. The Commission observes that our previous decision stated that Complainant did not submit a brief on appeal. Notwithstanding this inaccurate statement, we observe that the issues raised by Complainant in her appeal and her request for reconsideration were addressed by the Commission in its previous decision. The Commission found that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to prove that they were pretext intended to hide discriminatory motivation. Upon review of the request for reconsideration, the Commission finds that Complainant has not presented any evidence to support reconsideration of the Commission’s finding that she failed to show that she was subjected to disability discrimination or a hostile work environment based on her disability. 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. 2020004609 4 The decision in EEOC Appeal No. 2019001643 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 November 16, 2020 Date