Regina M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 3, 2019

2019001137 (E.E.O.C. Apr. 3, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Regina M.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 2019001137

Appeal No. 0120170567

Agency No. 200H04052015103266

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120170567 (September 6, 2018).
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 an applicant for a position at the Agency’s Medical Center in White River
Junction, Vermont. Complainant filed an EEO complaint alleging she was discriminated against
based on race (Black) when the Agency failed to refer her for consideration for the position of
RN (Medical Surgical).

The Agency issued its final decision, based on the evidence developed during its investigation
finding that Complainant failed to prove her discrimination claims. Our prior decision affirmed
the Agency’s finding that Complainant was not discriminated against.

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.
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However, the decision also sanctioned the Agency for issuing its decision more than a year after
Complainant made her request, in violation of 29 C.F.R. § 1614.110(b). The Agency was
ordered to provide training to the responsible Agency officials, consider disciplinary action, and
provide for Complainant’s attorney’s fees for the appeal if applicable

In her request for reconsideration, Complainant expresses her disagreement with the previous
decision and raises arguments that she raised before. We emphasize that a request for
reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A.
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. Complainant also now wishes to add retaliation as an additional basis of her complaint. At
this juncture, we will not accept a new basis of discrimination.

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. 0120170567 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

ORDER

Unless otherwise indicated, the Agency is ordered to complete the following remedial actions
within one hundred and twenty (120) days of its receipt of this decision:

1. The Agency shall provide training to its management officials in the Office of
Employment Discrimination Complaint Adjudication located in Washington, D.C.,
regarding their responsibilities concerning case processing.

2. The Agency shall consider taking appropriate disciplinary action against the responsible
management officials. The Commission does not consider training to be disciplinary
action. Within 30 days of the date this decision is issued, the Agency shall report its
decision to the Compliance Officer referenced herein. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
If the responsible management officials have left the Agency’s employment, then the
Agency shall furnish documentation of their departure dates.

3. As a sanction, the Agency, if applicable, shall provide Complainant reasonable
attorney’s fees for filing her original appeal. Complainant’s attorney shall submit a
verified statement of fees to the Agency -- not to the Equal Employment Opportunity
Commission, Office of Federal Operations -- within thirty (30) calendar days of the date
this decision was issued. The Agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. § 1614.501.
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The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission’s Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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). 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.
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.
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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

April 3, 2019
Date