0520110667
02-16-2012
Carolyn Harper, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Carolyn Harper,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520110667
Appeal No. 0120100844
Hearing No. 461-209-00075X
Agency No. 200L-0667-2008-104308
DENIAL
Complainant timely requested reconsideration of the decision in Carolyn
Harper v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120100844
(Aug. 12, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
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(b).
In our previous decision, the Commission affirmed an EEOC Administrative
Judge’s (AJ) issuance of a decision in favor of the Agency.
Specifically, the AJ found that Complainant was not subjected to age,
sex, or race discrimination when the Agency terminated Complainant from
her career-conditional appointment during her probationary period.
In her request for reconsideration, Complainant states that she may
not have been subjected to discrimination, “but something went wrong
with my employment.” Complainant maintains, as she did below, that
she sterilized surgical instruments on July 30 and 31, 2008, at the
request of the Charge Nurse, despite having been previously instructed
by the Acting Chief Nurse not to do so, because the person assigned to
sterilize instruments was away while a patient was on the operating table.
Complainant further contends, as she did below, that management did not
convey the seriousness of allegations that she improperly sterilized
instruments when it met with her on July 14, 2008, and did not inform
her that a further offense could result in termination. However, given
that the improper sterilization of surgical instruments could result in
serious illness or death of a patient, we do not find it reasonable that
Complainant would not understand the gravity of disobeying management
orders regarding sterilization. Moreover, even if the Charge Nurse
requested Complainant to sterilize instruments on the dates at issue,
Complainant was aware of the Acting Chief Nurse’s directive that she
not sterilize equipment.
We remind Complainant 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) (rev. Nov. 9,
1999), at 9-17; e.g., Lopez v. Dep’t of Agriculture, EEOC Request
No. 0520070736 (Aug. 20, 2007). A reconsideration request is an
opportunity to demonstrate that the previous decision involved a
clearly erroneous interpretation of material fact or law; or (2) will
have a substantial impact on the policies, practices, or operations of
the Agency. Complainant has not done so.
Therefore, 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(b), and it is the decision of the Commission to
DENY the request. The decision in EEOC Appeal No. 0120100844 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 16, 2012
Date
2
0520110667
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110667