Horacio Z.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 8, 2016

0520160424 (E.E.O.C. Sep. 8, 2016)

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

Horacio Z.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520160424

Appeal No. 0120161602

Agency Nos. 200I-0516-2014100666; 200I-0675-201402494; 200I-0573-2014104603; 2003-
0702-2013100852

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120161602 (June 23, 2016). 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).

On July 15, 2015, Complainant and the Agency entered into a settlement agreement to resolve
several EEO matters. The settlement agreement provided, in pertinent part, that:

(2a) The Agency agrees to give a one-time priority consideration for any term or full
time position with the Orlando VA Medical Center, Peer Support Specialist up to GS-5,
which becomes available, for which he is fully qualified, and for which the primary
duty location is within the Orlando VA Medical Center. The one-time priority
consideration shall expire two years after the effective date of this Agreement if not
redeemed prior to that 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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(2b) The Agency agrees to give a one-time priority consideration for any term or full
time position with the NG/SF VA Healthcare Systems, Peer Support Specialist up to
GS-9, which becomes available, for which he is fully qualified, and for which the
primary duty location is within the NG/SF Healthcare Systems;

(3a) Human Resources in the Orlando VA Medical Center and NG/SF Healthcare
Systems will notify Complainant in writing of any potential vacancies for the Peer
Support Specialist position in order for Complainant to notify [them] whether he is
interested in the position or not.

(3b) The parties agree that once Complainant has notified the Agency of his interest for
an open position for which he is qualified in the manner prescribed, he will have
immediately redeemed the priority consideration allotted to him for that individual VA
location;

(3f) The Agency also cannot violate the Master Agreement between the Department of
Veterans Affairs and the American Federation of Government Employees (union) to
give the first area of consideration to Orlando VAMC or NG/SF VA Healthcare System
employees; and

(3g) The selecting official is free to select the Complainant for the position or request a
list of other candidates if Complainant is not offered the position. Priority consideration
does not guarantee the Complainant will be selected for any position.

On September 5, 2015, the Agency notified Complainant of a Peer Support Specialist position
with the NF/SG VHS. Complainant applied and his application was submitted to the selecting
official for priority consideration. Complainant was not selected for the position.

By letter to the Agency dated October 15, 2015, Complainant alleged that the Agency was in
breach of the settlement agreement, and requested that the Agency specifically implement its
terms. Specifically, Complainant alleged that the Agency failed to select him for the Peer
Support Specialist position. Complainant also alleged that the Agency’s refusal to select him
was an act of retaliation.

On January 5, 2016, Complainant alleged a second breach of the Settlement Agreement.
Complainant claimed that the Agency failed to provide him with priority consideration for a
position that the Agency advertised on USAJOBS on December 30, 2015, without any
notification to Complainant from the Chief Human Resources Office.

On March 1, 2016, the Agency's Human Resources staff contacted Complainant via email to
ask Complainant whether he wanted to exercise priority consideration for the Peer Support
Specialist position GS-05, located in the Orlando VA Medical Center. Complainant declined
to exercise that priority consideration option.

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On March 6, 2015, the Agency issued its decision addressing both breach allegations. The
Agency found that it had fulfilled its obligations under the terms of the Agreement. The
Agency also reasoned that Complainant was raising additional incidents which required that
Complainant file a new EEO complaint because the claims were unrelated to the breach issue
and not within the scope of the terms of the Agreement.

Complainant appealed and, in Horacio C. v. Dep’t of Veteran Affairs, EEOC Appeal No.
0120161602 (June 23, 2016), the Commission affirmed the Agency’s decision finding no
breach of the settlement agreement. The Commission determined that the Agreement required
the Agency to provide a one-time priority consideration for two identified positions. The
record showed that the Agency provided the priority consideration. In addition, the Agreement
specifically stated that there was no guarantee that Complainant would be selected. Finally,
the Commission advised Complainant to contact an EEO Counselor if he wished to pursue
additional discrimination and retaliation claims.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and reiterates arguments previously raised on appeal. 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., 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.

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. 0120161602 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

September 8, 2016
Date