0520140512
02-03-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520140512
Appeal No. 0120130042
Hearing No. 530-2011-00281X
Agency No. 200H-0642-2010104562
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120130042 (July 17, 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).
Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when, on August 4, 2010, it notified her that vacancy announcement number 95-2010 for the position of Registered Nurse Infection Control had been cancelled.
The appellate decision affirmed an EEOC Administrative Judge's (AJ) decision, without a hearing, finding no reprisal discrimination. Specifically, the appellate decision found that the AJ's issuance of a decision without a hearing was appropriate because there was no genuine issue of material fact. In addition, the appellate decision found that the Agency articulated the following legitimate, nondiscriminatory reasons for its actions: (1) the Nurse Executive initially advertised the vacancy because she thought that the incumbent was about to retire; and (2) the Nurse Executive later cancelled the vacancy announcement because she thought that the incumbent had decided not to retire and she was concerned about overextending the budget at the close of the fiscal year.1 Finally, the appellate decision found that Complainant failed to show that the Agency's reasons were pretextual.
In her request for reconsideration, Complainant contended that the appellate decision involved a clearly erroneous interpretation of material fact or law, and requested that we remand the complaint for a hearing. First, Complainant argued that the appellate decision overlooked four material facts she raised and failed to draw all justifiable inferences from those facts in her favor. Specifically, Complainant cited the following facts: (a) the vacancy announcement listed the closing date as "open until filled;" (b) this was the first time in her 34 years of Agency employment that she was informed that a vacancy announcement had been cancelled; (c) the Selecting Official had no knowledge of the cancellation for 20 days after the vacancy announcement had been cancelled; and (d) the recruitment action request listed an August 6, 2010 proposed effective date, which was prior to the incumbent's October 2010 retirement date. Moreover, Complainant asserted that the appellate decision should have inferred that the Agency made the extraordinary decision to cancel the vacancy announcement because she was the best qualified candidate, it did not want to select her for retaliatory reasons, and it could not justify her non-selection. Second, Complainant argued that the appellate decision's finding of no discrimination was based exclusively on the Nurse Executive's self-serving, uncorroborated testimony.
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. Specifically, we find that the appellate decision did not clearly err in affirming the AJ's decision, without a hearing, finding no reprisal discrimination.
Regarding Complainant's first argument, we find that there is no genuine dispute as to those facts and that those facts are not material. As to fact (a), we note that the closing date of a vacancy announcement is not relevant to whether a vacancy announcement may be cancelled. As to fact (b), we note that Complainant's personal experience does not show that the Agency deviated from any personnel policy by cancelling the vacancy announcement. As to fact (c), we note that the Selecting Official's knowledge is not relevant because the Nurse Executive made the decision to cancel the vacancy announcement. As to fact (d), we note that the recruitment action request cited by Complainant does not involve vacancy announcement number 95-2010. The record reflects that vacancy announcement number 95-2010 was issued in February 2010. Because the request date (August 6, 2010) listed in the cited document is after the issue date of vacancy announcement number 95-2010, it appears that the document pertains to a different vacancy announcement. Report of Investigation (ROI), at 147-48; Complainant's Response to Agency's Motion for Summary Judgment, at Ex. B.
Regarding Complainant's second argument, we find that the record contains documentary evidence to support the legitimate, nondiscriminatory reasons articulated by the Nurse Executive. The Nurse Executive averred that she advertised the vacancy because she thought that the incumbent, who was on extended leave from February to April 2010 for personal reasons, was about to retire. In addition, the Nurse Executive averred that she cancelled the vacancy announcement because, based on the amount of work performed by the incumbent in the summer of 2010 (including overtime work in July 2010), she did not think that the incumbent would be leaving imminently and did not want to bring on any additional staff that was not needed. The documentary evidence reflects that the Nurse Executive initiated the recruitment action in February 2010, that the incumbent was on extended leave from February to April 2010, that the incumbent requested to work overtime in July 2010 for a project that was due in September 2010, and that the incumbent submitted her resignation on August 13, 2010, effective October 2010. ROI, at 147, 208-11.
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 demonstrated that here. The decision in EEOC Appeal No. 0120130042 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
___2/3/15_______________
Date
1 The appellate decision noted that the incumbent decided to retire not long after the vacancy announcement was cancelled and that the applicants were invited to reapply under a new vacancy announcement number.
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0520140512
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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