[Redacted], Jessenia S., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2021004430 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jessenia S.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Request No. 2022003392 Appeal No. 2021004430 Hearing No. 570-2020-01015X Agency No. DOL-19-11-112 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021004430 (May 5, 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). During the relevant time, Complainant worked for Veterans Employment and Training Services (VETS) in Washington, D.C. On July 11, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African American), sex (female), disability (vison, health, obesity, mobility), age (62), and in reprisal for prior protected EEO activity when, on February 13, 2019, Complainant was unable to apply to Vacancy Announcement No. MS-19-HRC-VETS-050, because the vacancy was limited to current federal employees serving in a GS-13 position or higher, and it 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. 2022003392 2 did not include a separate Delegated Examining (DE) announcement, despite other vacancies announced under both hiring procedures. Following an investigation, Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). However, the Agency filed a motion for summary judgment. The AJ agreed that there were no genuine issues of material fact and issued a decision without a hearing concluding no discrimination was established. The Agency subsequently issued a final order fully adopting the AJ’s decision. Complainant appealed the decision to the Commission. In EEOC Appeal No. 2021004430, we found that the AJ’s decision to grant summary judgment in favor of the Agency was proper because Complainant had failed to establish that there were material facts in dispute and that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact finder could not find in her favor. We concluded that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against as alleged. In her request for reconsideration, Complainant argues the appellate decision in EEOC No. 2021004430 incorrectly determined the facts. Complainant contends the Commission’s decision “incorrectly states that ‘at the time of events giving rise to this complaint, Complainant worked as a Veterans Correspondence Specialist at the Agency’s Veterans Employment and Training Service in Washington, DC.’” She asserts that during the relevant time, she was not working as a Veterans Correspondence Specialist, GS-11, but that is simply her position of record job title.” Complainant also appears to argue that it was inappropriate to analyze her case under the McDonnell-Douglas burden shifting framework because her case relied on direct evidence. In response, the Agency argues the prior decision should be upheld because Complainant’s job title is not material to the outcome of the case and has no bearing on whether the Agency’s proffered legitimate, nondiscriminatory reasons for its actions were pretextual. The Agency maintains that the Commission correctly concluded that the Agency’s actions were unrelated to Complainant’s race, sex, disability, age, or prior EEO activity. In order to merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Dep’t. of the Air Force, EEOC Request No. 05890749 (September 28, 1989). A request for reconsideration is not merely a form of a second appeal. Regensberg v. U.S. Postal Serv., EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. U.S. Postal Serv., EEOC Request No. 05900769 (September 27, 1990). Complainant has not done so here. 2022003392 3 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. 2021004430 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 September 29, 2022 Date