0520140019
04-16-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520140019
Appeal No. 0120112534
Hearing No. 440-2009-00051X
Agency No. 200J-0005-2008-101474
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120112534 (September 13, 2013). 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). For the following reasons, Complainant's request is denied.
BACKGROUND
In the appellate decision, Complainant alleged that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO when: 1. on or about January 9, 2008, he received an unfair performance evaluation (satisfactory rating) via e-mail from a supervisor he did not know and had never spoken with. After Complainant complained about that rating, the evaluation was changed to "Outstanding;" 2. on April 4, 2008, he received an e-mail advising him that he would be assigned to a new non-supervisory position description #06085, under a new supervisor; 3. On or about April 4, 2008, another individual was recruited and selected to be his supervisor without giving Complainant the opportunity to compete; 4. on or about May 25, 2008, his staff was assigned under Time and Leave (T & L) Group Number 210, which was the T&L he supervised; on May 11, 2008, his access to T&L 210 was removed; and on May 25, 2008, he was moved under T&L 661 and transferred to Station 103 with no supervisory designation; and 5. on or about May 2008, he was forced to work under two different classification standards, two different duty position descriptions, and for at least two separate organizations simultaneously.
Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ granted the Agency's motion for a decision without a decision. The AJ found that Complainant failed to prove that he was subjected to unlawful discrimination or harassment. Specifically, the AJ concluded that with respect to claim 1, Complainant failed to establish a prima facie case of reprisal because it was "doubtful that a performance rating that existed for only one week would deter a reasonable employee from complaining of discrimination." The AJ further found that Complainant failed to show that the Agency's non-discriminatory explanations for each of the alleged matters were pretext for unlawful discrimination. Additionally, the AJ found that the alleged actions were not severe or pervasive enough to constitute a hostile work environment or that the actions were based on Complainant's race or prior EEO activity. The Agency subsequently issued a final order fully adopting the AJ's findings.
The Commission as an initial matter noted that the AJ found that Complainant failed to establish a prima facie case of reprisal because it was doubtful that a "satisfactory" performance rating that existed for only one week would deter a reasonable employee from complaining of discrimination. The Commission found, however, that the AJ erred as a matter of law with respect to this matter because the issuance of such a performance rating was reasonably likely to deter protected EEO activity, even if the performance rating was ultimately raised to "Outstanding" a week later. See EEOC Compliance Manual Section 8. "Retaliation," No. 915.003 (May 20, 1998), at 8-1; see also Pleasant v. Dep't of Housing and Urban Dev., EEOC Appeal No. 0120080672 (Oct. 22, 2010) ("fully successful" performance rating and requirement to submit medical documentation to support reasonable accommodation request are type of actions that are reasonably likely to deter an employee from engaging in EEO activity). Moreover, for purposes of analysis, and without so finding, the previous decision assumed that Complainant established a prima facie case of reprisal and race discrimination for each alleged claim. Nonetheless, the Commission found that the Agency provided legitimate, non-discriminatory reasons for its actions and, Complainant failed to demonstrate that he was subjected to a hostile work environment.
REQUEST FOR RECONSIDERATION CONTENTIONS
Complainant in his request for reconsideration reiterates the arguments made on appeal, including but not limited to, he lost his supervisory position for no legitimate reason or cause, he was illegally and unfairly passed over for a chance to maintain his supervisory position, and the assignment of the supervisory position was made without merit competition.
ANALYSIS AND FINDINGS
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. We find that Complainant failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. We find that Complainant simply reargues the issues previously discussed and decided on appeal. The Commission has long held that a request for reconsideration is not a second opportunity to reargue the case. Accordingly, for the foregoing reasons, the Complainant's request is denied. The decision in EEOC Appeal No. 0120112534 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
___4/16/14_______________
Date
2
0520140019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140019