0520180158
04-05-2018
Elly C,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elly C,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520180158
Appeal No. 0120161676
Hearing No. 470-2014-00181X
Agency No. 200J0583201303361
MSPB No. CH-0752-15-0370-I-1
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120161676 (December 8, 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).
Complainant worked as a GS-6 Certified Pharmacy Technician within the Pharmacy Department at Roudebush VA Medical Center in Indianapolis, Indiana. Complainant filed an EEO complaint alleging she was discriminated against on the bases of sex (female), race (African American), and age when she was not selected for the GS-7/8 Supervisory Technician and GS-6 Vault Technician positions; she worked without a position description and management did not properly classify her position; she was reassigned and assigned GS-5 duties; a leave request was denied; a training request was denied; and she was suspended. Complainant also filed an appeal with the Merit Systems Protection Board (MSPB) regarding a decision to remove her on February 18, 2015, effective March 1, 2015. On June 16, 2015, the parties entered into a settlement agreement before the MSPB. The settlement agreement resolved both her EEO complaint and the MSPB appeal.
Complainant alleged that the Agency breached the settlement agreement. Our previous decision found that Complainant did not inform the Agency of her breach claims and did not specify how she believed the Agency breached the agreement. The decision noted that the record did not contain any evidence regarding the Agency's compliance with the agreement. Additionally, to the extent that Complainant contended that she was subjected to further discrimination, she was directed to contact an EEO counselor regarding any such claims. The decision ordered the Agency to conduct a supplemental investigation regarding its compliance with the settlement agreement and issue a new final decision regarding whether it has fully complied with the enforceable terms of the agreement.
Complainant's request for reconsideration was dated December 13, 2017. She appears to argue she is being retaliated against and raises some of the arguments she made before regarding her breach allegations.
On January 9, 2018, the Agency issued its decision regarding the breach allegations in accordance with the Order in our previous decision. The Agency found that the MSPB had jurisdiction over the settlement agreement, and that Complainant must bring her breach allegations before the MSPB.
The Commission's records do not show that an appeal was filed on the Agency's January 9, 2018, decision. Because the Agency issued its FAD on the matter after the request for reconsideration was filed, we find there is the possibility of confusion. Thus, we are granting Complainant 30 days from the date of this decision to file an appeal of the Agency's January 9, 2018 decision if she so desires. Likewise, she may file an appeal with the MSPB raising her breach concerns.
Accordingly, Complainant's request for reconsideration is DENIED. However, she is being given time to file an appeal of the Agency's January 9, 2018 decision if she so desires, within 30 days of the date of this decision. Complainant should include a copy of this decision with her appeal.
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
April 5, 2018
__________________
Date
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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