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

Equal Employment Opportunity Commission

Aug 15, 2022

Appeal No. 2022000045 (E.E.O.C. Aug. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Liza B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022002647 Appeal No. 2022000045 Hearing No. 532-2019-00048X Agency No. 200H-0541-201800135 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2022000045 (March 30, 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). Complainant was employed by the Agency as a GS-0661-6 Pharmacy Technician in the Anti- Coagulation Clinic at the Wade Park VA Medical Center, Louis Stokes Cleveland VA Medical Center in Cleveland, Ohio. On February 6, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race (African American) and reprisal (prior protected EEO activity) 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. 2022002647 2 1. from 2012 to October 10, 2017, a Pharmacist (P1) and Pharmacy Technician (PT1) regularly directed offensive physical, verbal, and facial gestures towards Complainant; 2. in 2012, a Pharmacist (P2) threatened to cut Complainant’s throat; 3. from January to October 10, 2017, a Clinical Pharmacy Specialist (S1) failed to take corrective action to stop the threats and verbal abuse towards Complainant; 4. from January 2017 to October 10, 2017, S1 used past disciplinary actions Complainant received from a former supervisor to threaten Complainant’s continued employment; 5. from April 2017 to June 2017, S1 changed Complainant’s Performance Improvement Plan (PIP) evaluation tasks on several occasions; 6. on June 1, 2017, Complainant was placed on a 90-day PIP; 7. on September 18, 2017 S1 issued Complainant a written counseling; 8. on September 18, 2017, Complainant was issued a Proposed Removal letter; and 9. on October 13, 2017, Complainant was removed from Federal Service.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. The Agency subsequently issued a final order fully adopting the AJ’s decision. Complainant appealed the Agency’s final order. Our decision in EEOC Appeal No. 2022000045 affirmed the Agency’s final order implementing the AJ’s decision finding no discrimination. This request for reconsideration followed. 2 Complainant withdrew Claim 7. Additionally, Complainant’s removal action (Claims 8 and 9) was processed as a mixed-case complaint and addressed in a separate final agency decision. Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding her removal and the record reveals that on May 28, 2021, the MSPB issued an initial decision dismissing the appeal as untimely filed. Based on the foregoing, we find Complainant's removal claim is not before us. 2022002647 3 In her request, Complainant provides no evidence to warrant granting her request. 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), at Chap. 9 §VII.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. 2022000045 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. 2022002647 4 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 15, 2022 Date