Darlene F., Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 26, 2017

0520170305 (E.E.O.C. Jul. 26, 2017)

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

Darlene F.,
Complainant,

v.

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

Request No. 0520170305

Appeal No. 0120170843

Agency No. 2004-1502-2016104824

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0120170843 (March
21, 2017). 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 her underlying complaint, Complainant alleged that the Agency discriminated against her on
the bases of race (African American), sex (female), color (dark), age, and in reprisal for prior
protected activity.

The Agency issued a final decision on December 12, 2016. The Agency determined that the
formal complaint was comprised of the following three claims:

1. On July 23, 2016, Complainant received her investigative report for her prior EEO
complaint and became aware that on October 30, 2015, and beforehand, [a named
Agency Official, Acting Chief Officer], took away her ability to compete for the
position of RCS District Director under vacancy announcement AJP-16-LHR-

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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1532755 by establishing a 52-week time in grade criteria without considering her
education level and current position.
2. On July 23, 2016, Complainant received her investigative report for her prior EEO
complaint and discovered that [a named employee] “lied in his sworn affidavit;” and
3. On July 23, 2016, Complainant received her investigative report for her prior EEO
complaint and discovered that [a named employee] was now the Executive Assistant
to the Chief Officer and [another named employee] a Social Service Program
Specialist.

In its final decision, the Agency dismissed claim (1) for stating the same claim that was the
subject of a prior EEO complaint. The Agency dismissed claims (2) and (3) for failure to state a
claim. Specifically, the Agency stated that an employee providing false testimony and the
selection of her coworkers to a new position does not render Complainant aggrieved.
Complainant appealed the Agency’s final decision to the Commission.

In EEOC Appeal No. 0120170843 (March 21, 2017), the Commission affirmed the Agency’s
dismissal of claims (1) and (2). However, the Commission found the Agency failed to properly
frame claim (3). The Commission determined Complainant was not solely alleging that her
coworkers were selected for specified positions. Rather, the Commission found that
Complainant was alleging that she was not selected for the position of Chief Officer,
Readjustment Counseling Services (RCS), Vacancy No. VA-SES-15-1559371-DM. Thus, the
Commission remanded claim (3) for further processing.

Thereafter, the Agency filed the present request for reconsideration solely challenging the
Commission’s remand of claim (3). The Agency argued that “[t]he Commission’s interpretation
of [Complainant’s] claim notwithstanding, irrefutable evidence shows [Complainant] did not
apply for the Chief Officer position, thereby negating any assertion by her that she is an
‘aggrieved party.’” The Agency argues that Complainant is not aggrieved since she chose not to
apply for the position. The Agency notes that the Commission has recognized that a complainant
might be aggrieved by non-selection for a position for which she did not apply where the
complainant demonstrates that the Agency discouraged her from applying or the application
process was secretive. The Agency states it advertised the Chief Officer vacancy by posting a
notice on USA JOBS. The Agency claims this does not reflect a secretive application process.
The Agency states that despite understanding she was eligible to apply, Complainant chose not
to apply for Senior Executive Service positions. The Agency states Complainant’s recollection
that the fact that the Chief Officer’s position was “repeatedly opened and closed” did not suggest
that any Agency official discouraged her from applying for the position. Thus, the Agency
stated that Complainant failed to state a valid claim of discrimination.

In her response to the Agency’s request for reconsideration, Complainant states she agrees with
the Commission’s framing of claim (3). Complainant notes the Agency “does not appear to
quibble with this re-framing.” Rather, Complainant notes that in its request, the Agency is
claiming that Complainant is not aggrieved because she did not apply for the Chief Officer
position. Complainant argues that the Agency did not dismiss claim (3) on that basis. Further,
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Complainant claims that even if the Agency had dismissed claim (3) on that basis, she can
establish facts that the Agency engaged in prohibited personnel practices that obstructed her
ability to compete for the position at issue.

In its request for reconsideration, the Agency raises a new grounds for dismissal which it had not
previously raised. Specifically, the Agency argues for the first time that Complainant was not
aggrieved due to the fact that she did not apply for the Chief Officer position. 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) (Aug.
5, 2015), at 9-18; see, e.g., Complainant 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. The Agency 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. The decision in EEOC Appeal No. 0120170843 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The
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Complainant also has the right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§
1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right
to file a civil action on the underlying complaint in accordance with the paragraph below entitled
“Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the
administrative processing of the complaint, including any petition for enforcement, will be
terminated. See 29 C.F.R. § 1614.409.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or filed your appeal with the Commission. 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. Filing a civil action will
terminate the administrative processing of your complaint.

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.

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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

July 26, 2017
Date