Ellan K.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 25, 2016

0520160152 (E.E.O.C. May. 25, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ellan K.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520160152

Appeal No. 0120141695

Agency No. 200J05532014100967

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120141695 (November 13, 2015). 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).

In her underlying complaint, Complainant, who worked for the Agency as a Health Science
Specialist “without compensation,” alleged that the Agency subjected her to unlawful
discrimination on the bases of her race, sex, color, and age when:

1. on or about May 2013, [Agency Physician 1] and [Agency Physician 2] met
with the Research Department to plan Complainant's “demise”;

2. on or about June 13, 2013, Agency Physician 1 cancelled an appointment to
meet with her; and
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.

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3. on October 31, 2013, she was terminated from her [without compensation]
appointment by Agency Physician 1.

In its final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim. On appeal, the Commission affirmed the Agency’s
dismissal, finding that the Commission lacked jurisdiction over the complaint because
Complainant worked “without compensation” and thus did not come within the regulatory
definition of “employee or applicant for employment” contained in 29 C.F.R. § 1614.103(c).

In her request for reconsideration, Complainant argues that the determination that she was not
an employee in the previous decision is erroneous. However, the record establishes that
during the relevant period Complainant served as a trainee and not as an employee. A letter,
dated December 14, 2011, issued to Complainant by the Agency at the beginning of her
service stated:

In accepting this assignment you will receive no monetary compensation and
you will not be entitled to those benefits normally given to regularly paid
employees of the Veterans Health Administration such as leave, retirement, etc.

We find that Complainant’s arguments do not 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. Accordingly, we find that Complainant has
failed to demonstrate that the Commission should reconsider its appellate decision.

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. 0120141695 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.

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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

May 25, 2016
Date