Coralee H.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 22, 2018

0520180085 (E.E.O.C. Mar. 22, 2018)

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

Coralee H.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520180085

Appeal No. 0120152681

Agency No. 2003-0589-2014101709

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120152681 (October 3, 2017).
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).

In her underlying complaint, Complainant alleged that the Agency subjected her to unlawful
discrimination in retaliation for prior protected EEO activity when:

1. on or about April 4, 2014, the Chief Technologist failed to act, and/or denied her
request to work compensatory time on April 15, 16, and 17, 2014;

2. on April 29, 2014, the Chief Technologist and Chief of Radiology denied her
request to use compensatory time to attend training from the Nuance Company
and to catch up on her duties; and

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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3. on May 5, 2014, the Administrative Officer and Chief of Radiology denied her
request for overtime and/or to use compensatory time to attend training from the
Nuance Company.

Complainant also alleged that she was subjected to a hostile work environment in unlawful
retaliation for her prior EEO activity based on the three events described above, as well as the
following events:

4. on September 18, 2013, the Chief Technologist and Administrative Officer stated
in an email to Complainant ,“I am curious as to why this email is directed to
[Chief of Radiology Service], with a cc to myself. What was the goal here?;”

5. on September 27, 2013, the Chief Technologist issued her a written counseling
concerning her communication skills;

6. on January 12, 2014, the Chief Technologist stated to her, “were you planning to
complete Powerscribe and timekeeping duties this afternoon?;”

7. on January 16, 2014, the Chief Technologist notified her that the two of them
would meet on a monthly basis to “mentor” and/or discuss Complainant's work;

8. on February 14, 2014, the Chief Technologist verbally counseled her in a rude
and condescending manner for not following the chain of command;

9. on February 26, 2014, the Chief Technologist stated to her, “will this impact your
workload?”;

10. on February 28, 2014, the Chief of Radiology told her to remove the comment
from her leave request that stated she was requesting leave due to being subjected
to a hostile work environment which was impacting her health, both mentally and
physically;

11. on an unspecified date, the Chief Technologist told her, “if you don't stop
harassing me, I am going to get an attorney;”

12. on an ongoing basis, (no dates provided), the Chief Technologist talked down to
her and spoke to her as if she did not know her job;

13. on April 29, 2014, the Chief Technologist and Chief of Radiology failed to act
and/or approve her request for leave to attend a funeral; and

14. on April 29, 2014, the Chief of Radiology denied her request to obtain a copy of
the schedule to train each radiologist.
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In its final decision, the Agency found that Complainant failed to prove she was subjected to
retaliation. On appeal, the Commission affirmed the Agency’s decision, finding that
Complainant failed to prove that the Agency’s explanations for its actions were pretext designed
to conceal discriminatory animus or that the Agency’s allegedly harassing actions were
motivated by retaliatory animus.

In her request for reconsideration, Complainant does not discuss the legal or factual
determinations underlying the appellate decision. The Commission emphasizes 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), at 9-18 (Aug. 5, 2015); see, e.g.,
Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). 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.

We find that Complainant’s arguments do not 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. Accordingly, we find that Complainant failed to
demonstrate that the Commission should reconsider its appellate decision.

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. 0120152681 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.

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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

March 22, 2018
Date