[Redacted], Elise S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 8, 2023

Appeal No. 2020004448 (E.E.O.C. Feb. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elise S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022005178 Appeal No. 2020004448 Agency No. 200-H-0528-2018103079 Hearing No. 520-2019-00491X DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Elise S. v. Department of Veterans Affairs, EEOC Appeal No. 2020004448 (September 27, 2022). 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). 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. 2 2022005178 During the relevant time, Complainant worked for the Agency as a Lead Medical Support Assistant in Buffalo, New York. On July 6, 2018, Complainant filed a formal EEO complaint claiming the Agency subjected her to a hostile work environment based on race, disability, and in reprisal for prior protected activity when: she worked without a position description; she was told to either accept her working terms or be demoted to a lower grade; she receive multiple emails about work assignments she missed while on Family and Medical Leave Act (FMLA) leave; her work assignments were increased; she was required to provide onsite training while on FMLA; management failed to respond to her concerns about work responsibilities; a supervisor spoke to her in a disrespectful and demeaning manner; she was told her absences had an impact upon the Agency ability to provide training, she was blamed for communications problems, and she was told that she failed to complete audits; she was told that no changes were be made to her position description, functional statement, or grade; her verbal request to continue teleworking as a reasonable accommodation was not acknowledged; her telework agreement was ended; she was accused of not completing assigned audits, that she failed to communicate with managers, and that she failed to perform various duties; her medical provider was not provided with various reasonable accommodation forms and her reasonable accommodation request was sent in an email where other supervisors were copied; a supervisor failed to appear at a reasonable accommodation meeting; she was denied a reasonable accommodation request and was told that one would be offered only if she accepted a downgraded position; she was informed that her reasonable accommodation request would be closed if she did not accept an accommodation which would result in a demotion; her complaints about excessive workloads were ignored and her workload was increased; she was issued counseling letters and reprimands; a supervisor failed to provide Human Resources with documentation regarding an advanced sick leave request; she was charged absent without leave; she was told that she needed to re-apply for a reasonable accommodation; her medical diagnosis was improperly shared with her supervisor; she was charged as absent without leave in July and August 2018; she was denied a reasonable accommodation request in August 2018; the Agency provided an improper proposal in a reasonable accommodation offer; the Agency denied a reasonable accommodation request for telework or an alternating schedule; her computer access was blocked; she was issued an inadequate position description; and she was improperly issued a “fully successful” performance rating. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge, but withdrew the hearing request. The Agency then issued a final decision based on the evidence developed during the investigation, finding no discrimination or unlawful retaliation was established. Complainant filed an appeal. 3 2022005178 In EEOC Appeal No. 2020004448, the Commission affirmed the Agency’s final decision, concluded no discrimination or unlawful retaliation was proven. We note that Complainant submitted voluminous appellate documentation on appeal, in the prior decision. We have reviewed the arguments raised by Complainant in the instant request for reconsideration and determine that there is no reason to disturb the Commission’s prior decision. Complainant raises arguments which either were previously raised, or which could have been raised below. 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), Chap. 9 § VI.A (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. Complainant has not done so here.2 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. 2020004448 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. 2 We note that in the Agency response to the instant request, the Agency inadvertently made reference to a Hearing Number and Agency Number of a complainant unrelated to this case, who was the subject of our decision in Donny F. v. Department of Veterans Affairs, EEOC Appeal No. 2021001503 (February 17, 2022). 4 2022005178 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 February 8, 2023 Date