0520180141
03-29-2018
Horace L,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
Horace L,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520180141
Appeal No. 0120151719
Hearing No. 430-2013-00283X
Agency No. 200406582012103373
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120151719 (November 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).
At the time of events giving rise to the underlying complaint, Complainant worked as an Administrative Officer at the Agency's Facilities Management Service, Medical Center, in Salem, Virginia. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when (1) on December 23, 2011, he was notified that he was not selected for the position of Voluntary Service Officer (VSO), GS-12, Vacancy Announcement VHA-658-11-VR536886; and (2) on May 18, 2012, he learned that the Selecting Official had accessed his private medical records on October 28, 2011, prior to Complainant being interviewed for the Voluntary Service Officer position.
Our prior appellate decision affirmed the EEOC Administrative Judge's (AJ's) decision following a hearing. The AJ's decision found in favor of the Agency, concluding Complainant failed to prove his discrimination claims. However, the AJ found that the Agency failed to retain interview notes/evaluations or reference checks related to the VSO position, and as such found that the Agency violated the Commission's record keeping requirements in accordance with 29 C.F.R. � 1602.14.
In his request for reconsideration, Complainant expresses his disagreement with the previous decision. 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. 0120151719 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency will comply with the Order as set forth below.
ORDER
The Agency, if it has not already done so, shall within one hundred twenty (120) days of the date of this decision is issued take the following actions:
1. The Agency shall communicate in writing to managers and supervisors who participate in selections the requirement to retain interview notes/evaluations in accordance with 29 C.F.R. � 1602.14;
2. The Agency shall include in EEO training given to managers and supervisors who participate in selections a provision to retain interview notes/evaluations in accordance with 29 C.F.R. � 1602.14; and
3. The Agency shall provide training in EEOC regulations concerning the maintenance of records under 29 C.F.R. � 1602.14 to the selecting official, interview panel members and human resources personnel involved in the selection process for the position at issue in this complaint, Job Announcement Number VHA-658-11-VR536886.
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 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 (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
March 29, 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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