Augustine V.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 20, 2018

2019000119 (E.E.O.C. Dec. 20, 2018)

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

Augustine V.,1
Complainant,

v.

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

Request No. 2019000119

Appeal No. 0720180010

Hearing No. 420-2015-0031X

Agency No. 200305202014102889

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0720180010 (August 21, 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).

During the relevant time, Complainant worked as a Medical Instrument Technologist at the
Agency’s Sleep Laboratory, Gulf Coast Veterans Health Care System (GCVHCS) in Biloxi,
Mississippi. Complainant filed an EEO complaint alleging that the Agency discriminated against
her 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.
2019000119

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A. on March 25, 2014, her request for reassignment was denied;

B. on March 25, 2014, her request to cross-train was denied;

C. on March 28, 2014, her request for overtime was denied;

D. on April 8, 2014, she was charged leave without pay (LWOP) instead of
being allowed to work compensatory time to make up for the leave she
had taken;

E. on April 17, 2014, her tour of duty was changed;

F. on May 12, 2014, she learned that she made less money that her male
coworker who had less seniority; and,

G. on May 22, 2014, she received an unsatisfactory performance rating on
her mid-year performance evaluation.

Following the investigation into her complaint, Complainant timely requested a hearing before
an EEOC administrative Judge (AJ). Following the hearing, the AJ issued a November 9, 2017
decision finding discrimination and ordering remedies which included non-pecuniary
compensatory damages, overtime pay, a revised performance evaluation, leave, performance
awards, and attorney’s fees. The Agency issued its final order on December 5, 2017, indicating
it was not implementing the AJ’s decision and orders because Complainant had gone to court on
the matter.

Citing to 29 C.F.R. § 1614.107(a)(3), our prior appellate decision vacated the AJ’s decision and
affirmed the Agency’s dismissal of the administrative EEO complaint because Complainant had
raised the same claims in her Complaint filed on October 6, 2017, in the U.S. District Court for
the Southern District of Mississippi (Civil Action No. 1:17CV282H50-JCG). It was noted in the
decision that Complainant filed her civil action prior to the AJ’s issuance of his November 9,
2017 decision.

In her request for reconsideration, Complainant submits additional documents related to her
court filings. 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.

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.
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The decision in EEOC Appeal No. 0720180010 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

December 20, 2018
Date