Carolyn Harper, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 16, 2012
0520110667 (E.E.O.C. Feb. 16, 2012)

0520110667

02-16-2012

Carolyn Harper, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.




Carolyn Harper,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Request No. 0520110667

Appeal No. 0120100844

Hearing No. 461-209-00075X

Agency No. 200L-0667-2008-104308

DENIAL

Complainant timely requested reconsideration of the decision in Carolyn

Harper v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120100844

(Aug. 12, 2011). 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(b).

In our previous decision, the Commission affirmed an EEOC Administrative

Judge’s (AJ) issuance of a decision in favor of the Agency.

Specifically, the AJ found that Complainant was not subjected to age,

sex, or race discrimination when the Agency terminated Complainant from

her career-conditional appointment during her probationary period.

In her request for reconsideration, Complainant states that she may

not have been subjected to discrimination, “but something went wrong

with my employment.” Complainant maintains, as she did below, that

she sterilized surgical instruments on July 30 and 31, 2008, at the

request of the Charge Nurse, despite having been previously instructed

by the Acting Chief Nurse not to do so, because the person assigned to

sterilize instruments was away while a patient was on the operating table.

Complainant further contends, as she did below, that management did not

convey the seriousness of allegations that she improperly sterilized

instruments when it met with her on July 14, 2008, and did not inform

her that a further offense could result in termination. However, given

that the improper sterilization of surgical instruments could result in

serious illness or death of a patient, we do not find it reasonable that

Complainant would not understand the gravity of disobeying management

orders regarding sterilization. Moreover, even if the Charge Nurse

requested Complainant to sterilize instruments on the dates at issue,

Complainant was aware of the Acting Chief Nurse’s directive that she

not sterilize equipment.

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. Nov. 9,

1999), at 9-17; e.g., Lopez v. Dep’t of Agriculture, EEOC Request

No. 0520070736 (Aug. 20, 2007). A reconsideration request is an

opportunity to demonstrate that the previous decision involved a

clearly erroneous interpretation of material fact or law; or (2) will

have a substantial impact on the policies, practices, or operations of

the Agency. Complainant has not done so.

Therefore, 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(b), and it is the decision of the Commission to

DENY the request. The decision in EEOC Appeal No. 0120100844 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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time limits

as stated in the paragraph above (“Right to File a Civil Action”).

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 16, 2012

Date

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0520110667

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520110667