0520150087
03-27-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520150087
Appeal No. 0120131790
Agency No. 2003-0657-2009102643
DECISION ON A REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120131790 (October 3, 2014). 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(c).
During the relevant time period, Complainant worked as a radiological technologist at the Agency's medical center in St. Louis, Missouri. Complainant filed an EEO complaint alleging that she was subjected to unlawful discrimination on the bases of race, age, and in reprisal for prior protected activity. The Agency investigated the complaint and provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but withdrew her request after the hearing had been concluded.1 Thereafter, the Agency issued a final decision concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Our prior decision set forth the following incidents comprising Complainant's complaint:
1) On October 22, 2008, [the Supervisor of Clerks, S-C] attempted to have Complainant voted off a professional standards board of which she was a member.
2) On March 6, 2009, [the supervisor of nuclear medicine, S-NM] denied Complainant the opportunity to act as a temporary supervisor.
3) On July 9, 2009, S-NM and [Complainant's first-line and second-line supervisors, S1 and S2] changed Complainant's duty hours.
4) On July 20, 2009, S1 spoke to Complainant in a rude and provocative manner.
5) On July 21, 2009, [Complainant's third-line supervisor, S3] denied Complainant's request for overtime compensation.
6) On August 5, 2009, S3 issued Complainant a proposed reprimand.
7) On August 21, 2009, S3 issued Complainant a second proposed reprimand.
8) On September 9, 2009, S-C yelled at Complainant in front of patients.
9) On September 15, 2009, S3 issued the reprimand stemming from the proposed reprimands described in incidents (6) and (7).
In our prior decision, we concurred with the Agency that Complainant failed to establish that the Agency's articulated reasons for incidents (3), (5), and (9) were pretext for discrimination. We further concurred with the Agency that Complainant failed to establish that she was subjected to an unlawful hostile work environment based on the remaining incidents.
To the extent Complainant asserts, in her request for reconsideration, that our prior decision stated that Complainant did not submit any documents in support of her appeal, we note that the record contains the documents that Complainant submitted in support of her initial appeal. The prior decision, however, properly found that upon review of the entire record (including Complainant's submission), Complainant failed to establish, by a preponderance of the evidence, that the Agency's articulated reasons for its actions were pretext for discrimination.
We note that our prior decision did not expressly address an incident that is part of the instant complaint, that in October 2009, management issued Complainant a proposed suspension. We find this to be harmless error. A review of the record reflects that the Agency articulated legitimate, nondiscriminatory reasons for this action which Complainant failed to establish, by a preponderance of the evidence, was pretext for retaliation. Specifically, during the hearing, Agency management testified that there was an incident in which Complainant exposed a co-worker to radiation. Hearing Transcript (Hr'g Tr.) at Volume (Vol.) II at 131-133. However, management further stated that the proposed suspension was retracted because it was reported that this co-worker chose to walk though the scanning room as a shortcut on another occasion when the scanner was on. Hr'g Tr. Vol. II at 134. Based on the foregoing, management decided not to pursue this action with Complainant. Id.
In her request for reconsideration, Complainant also reiterates other arguments previously made. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch.9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact of 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. 0120131790 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
March 27, 2015
Date
1 Our prior decision properly noted that even though the AJ did not issue a decision in this case, the transcripts generated from the hearing are still part of the record.
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0520150087
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
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