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

Equal Employment Opportunity Commission

Jul 27, 2021

Appeal No. 2020000027 (E.E.O.C. Jul. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Greg Y.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021002985 Appeal No. 2020000027 Agency No. 20DR-0010-2019100341 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020000027 (April 22, 2021). 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). During the relevant period, Complainant worked as a Health System Specialist/Equal Employment Opportunity (EEO) Manager, GS-0671-13, at the Agency’s VA Medical Center in Boise, Idaho. On November 26, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (white), and age (over 40) when on September 7, 2018 and October 18, 2018, he was not selected for two GS-14 EEO Manager positions under Vacancy Announcement Nos. CASA-10257783-CLN-18 (No. 7783) and CASA-10257917 (No. 7917). 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. 2021002985 2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. 1614.110(b), finding no discrimination regarding either Vacancy Announcement. In its prior decision, the Commission affirmed the Agency’s finding of no discrimination for Vacancy Announcement No. 7917. However, regarding Vacancy Announcement No. 7783, the Commission determined that the present record lacked the necessary information, vacated the Agency’s finding of no discrimination, and remanded the matter to the Agency for a detailed supplemental investigation. In the instant request for reconsideration, Complainant submits extensive statements expressing disagreement with the appellate decision. However, in essence, Complainant reiterates arguments previously made, or which could have been made, on appeal. We emphasize 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), 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. 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. 2020000027, which affirmed the finding of no discrimination regarding Vacancy Announcement No. 7917, and which vacated the Agency’s finding of no discrimination regarding Vacancy Announcement No. 7783, remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. However, given the Commission’s prior decision vacating the Agency’s disposition for one of the two claims, we will include an Order addressing this matter, as fully delineated below. ORDER To the extent that the Agency has not already done so, the Agency shall take the following actions regarding Vacancy Announcement No. 7783, which replicates the Order for this matter articulated in the prior decision: 1. Conduct and complete a supplemental investigation consistent with the requirements of 29 C.F.R. 1614.108(b), in EEO MD-110, Chapter 6, and consistent with this decision. The supplemental investigation shall include, but not limited to: an affidavit or other declaration from the official identified as the VISN Lead EEO Manager who was a member of the rating panel regarding the selection process for Vacancy Announcement CASA-10257783-CLN-18 and explaining the rating given to Complainant and applicants 2021002985 3 referred for interviews. If the identified witness is no longer available, the Agency shall provide an explanation of that availability and obtain information from other Agency personnel who are able to provide relevant evidence. In addition, the Agency shall obtain complete application materials, contemporaneous notes, scoring sheets, or other documents created during the selection process for Vacancy Announcement CASA- 10257783-CLN-18. 2. If Complainant identifies a witness who can provide material and relevant evidence and Complainant makes a proffer of the evidence the witness will provide, the investigator shall obtain the witness’ statement of testimony. If the investigator decides not to call a witness identified by Complainant, the investigator shall provide an explanation in the record. If the Agency does not provide information or documentation requested by the investigator or an Agency witness, or an alternate where appropriate, the investigator shall include an explanation in the record. 3. The Agency shall provide Complainant the opportunity to provide a rebuttal affidavit once he has received the supplemental investigative report. Complainant shall cooperate, as appropriate with the Agency in its actions in supplementing the investigation. 4. In the supplemental investigative report, exhibits should be identified in the bookmark sections of the electronic submissions to the Commission and not only identified as an exhibit with a number. 5. The Agency shall issue a new decision following the completion of the investigation. 6. A copy of the supplemental investigative report and a new final decision, unless the parties have otherwise resolved this matter, must be provided to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 2021002985 4 The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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 July 27, 2021 Date