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

Equal Employment Opportunity Commission

Feb 22, 2023

Appeal No. 2021003222 (E.E.O.C. Feb. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nerissa S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022004520 Appeal No. 2021003222 Agency No. 200I-0509-2018103214 Hearing No. 410-2019-00018X DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Nerissa S. v. Department of Veterans Affairs, EEOC Appeal No. 2021003222 (July 18, 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 2022004520 During the relevant time, Complainant worked for the Agency as an Auditor at the Charlie Norwood Medical Center in Augusta, Georgia. On June 1, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on disability and in reprisal for prior protected activity. Complainant raised the following claims: requests for reasonable accommodation were denied; an Agency official disclosed her medical information to a supervisor; medical leave requests were denied; a request for annual leave was denied; she was removed as a Coordinator and State Home Representative; on two days in February and March 2018, she was not allowed to use annual leave for two hours per day; an Agency official directed a sarcastic comment to her; and an Agency official made a snide remark in reference to Complainant’s interactive agreement. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The assigned AJ issued a summary judgment decision, finding no discrimination or unlawful retaliation was established. Regarding the reasonable accommodation claim, the AJ indicated that this claim should be dismissed due to collateral estoppel. Specifically, the AJ found that res judicata attached to the finding of a Merit Systems Protection Board (MSPB) AJ that, when reviewing Complainant’s removal, the Agency did not wrongfully deny a reasonable accommodation request. Regarding the claim of disclosure of medical information, the AJ determined that a supervisor was given access to medical information to take official action when the Chief Financial Officer was not available. Regarding the remaining claims, the AJ found that Complainant provided only speculative statements indicating that the actions were motivated by disability or reprisal. The Agency issued a final order, implementing the AJ’s summary judgment decision. In EEOC Appeal No. 2021003222, the Commission affirmed the Agency’s final order, implementing the AJ’s summary judgement decision finding it accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. Regarding the reasonable accommodation claim, the Commission found that although the EEOC AJ reviewed the claim as a part of the MSPB’s removal decision, the matter did not constitute res judicata. The Commission nevertheless determined that Complainant was not discriminated against as described when her reasonable accommodation requests were denied. We have reviewed the arguments raised by Complainant in the instant request for reconsideration, regarding the reasonable accommodation claim, the disclosure of medical information, claim, and the remainder of matters raised in the formal complaint. However, we 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). 3 2022004520 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. 2021003222 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 February 22, 2023 Date