[Redacted], Jacki A, 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 31, 2020

Appeal No. 0120181845 (E.E.O.C. Aug. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jacki A,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Request No. 2020001786 Appeal No. 0120181845 Hearing No. 410-2016-0072X Agency No. 200I-0508-2015102282 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Jacki A. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120181845 (June 25, 2019). 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 period at issue, Complainant worked as a Logistics Medical Supply Technician, GS 7, at the Agency’s VA Medical Center in Decatur, Georgia. On May 5, 2015, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on her disability (polymyositis) when: 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. 20200017862 1. On January 2, 2015, the Agency did not select her for the position of Inventory Management Specialist, Vacancy No. JV-14-EDC-1168651-BU; and 2. On March 9, 2015, she received a “Fully Satisfactory” rating for her fiscal year (FY) 2014 performance evaluation. The assigned EEOC Administrative Judge (“AJ”) held hearings on June 27, June 29, and July 12, 2017. On April 3, 2018 the AJ issued a decision in favor of the Agency, finding that Complainant did not establish a prima facie case of disability because she failed to present evidence sufficient to raise an inference of disability discrimination. Regarding her non- selection for the Inventory Management Specialist Position, the AJ determined that the selecting official was unaware of Complainant’s disability during the application process. The AJ also noted that Complainant’s application was ranked with the lowest score while the Selectee was ranked with the highest score. Regarding her performance evaluation, the AJ noted that Complainant did not receive a mid-year performance rating and that Complainant’s FY 2014 performance rating was lower than her prior rating. The AJ found that the record supported that Complainant’s supervisor did not issue FY 2014 mid-term appraisals because he left the facility mid-year. However, the AJ explained that Complainant was asked to submit weekly reports assessing her performance after her supervisor left, but management determined that Complainant did not provide any substantial information on her achievements despite being asked to do so, and Complainant’s performance deteriorated after she was not selected for the Inventory Management Specialist position. On April 6, 2018, the Agency issued a final order affirming the AJ’s decision. On appeal, the Commission affirmed the Agency’s final order in a decision dated, June 25, 2019. The Commission determined that there were twelve candidates for the Inventory Management Specialist and selection was based on the candidates’ scores received on nine criteria. The Commission found that the Selectee received 34 points, the highest score, while Complainant received 7 points, the lowest score of all the candidates. Additionally, the Commission acknowledged testimony from the selection official indicating that Complainant was not more qualified that the Selectee because Complainant did not have the depth of budgetary knowledge or knowledge of equipment acquisition required for the position. The Commission further determined that the Agency provided legitimate, non-discriminatory reasons for not providing Complainant with a FY 2014 mid-year review, and for rating Complainant “Fully Satisfactory” on her FY 2014 performance. In the instant request for reconsideration, Complainant, submits a brief expressing her disagreement with the appellate decision and reiterates arguments previously made on appeal. The Commission emphasizes 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 20200017863 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. 0120181845 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. 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 August 31, 2020 Date