0520180168
04-05-2018
Ludie M,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
Ludie M,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520180168
Appeal No. 0120161932
Agency No. 200H07312015101450
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120161932 (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 filed an EEO complaint alleging that she was discriminated against based on race (Black) and reprisal when on December 12, 2014, she was not selected for the position of Staff Nurse Revenue Utilization Review from Vacancy Announcement No OY-174-CSK-1218292-BU.
Following its investigation into these claims, the Agency issued its final decision ("FAD") on December 9, 2015. Complainant's attorney received the FAD on December 14, 2015. On May 17, 2016, Complainant filed an appeal with the Commission. Thus, the previous decision found that Complainant's appeal was untimely filed and dismissed the appeal.
In her request for reconsideration, Complainant argues that she did not receive a copy of the FAD, as noted in emails attached to her request, and also argues that the Agency missed numerous deadlines in the processing of her complaint.
Upon review of the record, we find evidence that the FAD was mailed to the address of record for Complainant's attorney by certified mail. The record further contains the certified mail return receipt ("green card") signed by someone in the attorney's office,2 and clearly dated December 14, 2015. Where Complainant is represented by an attorney, the time period will be calculated by the date of receipt by the attorney, not the complainant. 29 C.F.R. � 1614.402(b). Complainant's arguments notwithstanding, we find that her attorney received the Agency's decision on December 14, 2015, but did not file her appeal until five months later, on May 17, 2016.
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. 0120161932 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.
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.
2 According to the record, the individual ("S... C...") who signed for the FAD at Complainant's attorney's office was the same individual who signed for the Report of Investigation and hearing request form in September 2015.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
3
0520180168