Horatio Z.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 21, 20180520180004 (E.E.O.C. Feb. 21, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Horatio Z.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Request No. 0520180004 Appeal No. 0120171520 Agency No. 200307022013100852 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120171520 (September 6, 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 and the Agency entered into a settlement agreement on July 17, 2015, that resolved four formal complaints. The July 17, 2015 settlement agreement, contained, in pertinent part, Section 2, which identified the following affirmative Agency obligations: a. Give a one-time priority consideration for any term or full time position within the Orlando VA Medical Center, peer support specialist up to GS-5, which becomes available, for which [Complainant] is fully qualified and for which the primary duty location is within the Orlando VA Medical Center. The one-time priority 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. 0520180004 2 . . . . f. Rescind the complainant's removal from the position of Medical Support Assistant, Health Administration Service, at Bay Pines VA Healthcare System as of the date of separation November 18, 2013. g. At the execution date of this agreement, Complainant shall provide simultaneously written resignation from the Medical Support Assistant position at the Bay Pines VA Healthcare Systems with an effective date of November 18, 2013. Upon receipt of the Complainant's written resignation the Agency will replace the SF-50 effecting Complainant's removal from the Medical Support Assistant position with an SF-50 indicating resignation as of November 18, 2013. Complainant alleged that the Agency breached sections 2(f) and 2(g) of the settlement agreement when, on July 25, 2014, the Agency rescinded the tentative job offer in the Gainesville VA Medical Center because he did not disclose his prior termination. Complainant also alleged that Agency breached section 2(a) of the settlement agreement by failing to give him priority consideration when rejecting him for one vacancy in the Vieira Outpatient Clinic and another vacancy within the Orlando VA Medical Center. On May 9, 2017, the Agency issued a decision finding no breach of the settlement agreement. The Agency determined that because the settlement agreement was executed on July 17, 2015, the Agency’s withdrawal of the Gainesville VA Medical Center offer in July 2014, could not have constituted a breach. The Agency found that it did not breach provision 2(a) because the Vieira Outpatient Clinic vacancy was a GS-6 position. The Agency decided that the Agency properly gave Complainant priority consideration for a GS-5 vacancy at the Orlando VA Medical Center, but did not select him for the Orlando job. Complainant filed an appeal from the Agency’s decision. In EEOC Appeal No. 0120171520, the Commission affirmed the Agency’s decision finding no breach of the settlement agreement. In his request for reconsideration, Complainant merely reiterates contentions that were considered in the previous decision. 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. 0120171520 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 0520180004 3 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 February 21, 2018 Date Copy with citationCopy as parenthetical citation