Allene R.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 16, 2016

0520160511 (E.E.O.C. Dec. 16, 2016)

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

Allene R.,1
Complainant,

v.

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

Request No. 0520160511

Appeal No. 0120161924

Agency No. 200I-0557-2016101642

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120161924 (August 19, 2016). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision 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).

In the underlying complaint, Complainant alleged that the Agency subjected her to retaliation
(prior EEO activity) when while working as a GS-11 Dietitian from 2000-2008, she was
assigned duties at the GS-12 level without receiving GS-12 pay.

Our previous decision affirmed the Agency’s dismissal for untimely EEO contact in accordance
with 29 C.F.R. § 1614.107(a)(2). In our previous decision we noted that the record
established that the alleged discriminatory event occurred between the years 2000 and 2008,
but Complainant did not initiate contact with an EEO Counselor until January 12, 2016, which
is beyond the forty-five (45) day limitation period. We did not find Complainant’s argument

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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(that she feared reprisal if she pursued an EEO complaint earlier) to be persuasive and noted
that the Commission has repeatedly held the mere fear of reprisal is an insufficient justification
for extending the time limitation for contacting an EEO Counselor.

In her request for reconsideration, Complainant raises arguments previously raised. We
remind Complainant 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) (rev. Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep’t of Agriculture,
EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an
opportunity to demonstrate that the previous 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.

Accordingly, 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. 0120161924 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
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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

December 16, 2016
Date