Evelyn S.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Sep 12, 2019

2019004259 (E.E.O.C. Sep. 12, 2019)

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

Evelyn S.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.

Request No. 2019004259

Appeal No. 0120180205

Agency No. HHS-NIH-OD-184-16

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180205 (April 24, 2019). 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).

During the period at issue, Complainant worked for the Agency as a Program Analyst in
Maryland. Complainant filed a formal EEO complaint claiming she was subjected to
harassment/a hostile work environment based on age (over 40) and in reprisal for prior EEO
activity when: (1) on September 19, 2016, her Supervisor issued her a Memorandum of
Counseling regarding unsatisfactory performance in completing the Electronic Research
Administration’s (ERA) senior-level reporting requirements; (2) on October 13, 2016, her
Supervisor sent her an email with the subject line, “1.1 Recap.”

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.
2019004259

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In the email, the Supervisor summarized the topics discussed during a one-on-one meeting with
Complainant; (3) on November 16, 2016, the Supervisor sent Complainant an email with the
subject line, “Calendar invitations.” The Supervisor asked Complainant if there was a reason
why she had not been responding to calendar invitations and noted two specific calendar
invitations which had not been responded to by the Complainant; and (4) Complainant received a
rating of “Achieved Expected Results/Fully Successful” with a score of 3.2 on her amended
performance appraisal for the period of September 19, 2016 - December 31, 2016.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge.
In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b), finding no discrimination. Complainant appealed.

In EEOC Appeal No. 0120180205, the Agency’s final decision concluding the evidence of
record failed to establish discrimination occurred was affirmed.

In her request for reconsideration, Complainant repeats the same arguments made during her
original appeal. We emphasize that a request for reconsideration is not a second appeal to the
Commission. See EEO MD-110, Ch. 9, § VII.A. 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.

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. 0120180205 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.

2019004259

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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

September 12, 2019
Date