Nancey D.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 11, 2018

0520180126 (E.E.O.C. Apr. 11, 2018)

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

Nancey D.,1
Complainant,

v.

Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Request No. 0520180126

Appeal No. 0120172773

Agency No. 200P-0691-2017103320

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172773 (November 7, 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).

In the underlying complaint, Complainant alleged that the Agency subjected her to a hostile
work environment and discrimination in reprisal for her prior protected EEO activity when: (1)
Complainant’s supervisor used her position to promote the Program Support Assistant (PSA) to a
GS-6 position which was not warranted and the PSA was responsible for not blocking out her
schedule during the period she wanted to take leave;2 (2) the PSA made a comment about
exercise on February 26, 2015; and (3) on April 19, 2017, Complainant was not able to attend an

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 Complainant is not asserting that she merited a promotion or was in competition with PSA for a
promotion.
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ice cream social because she was tasked with out-patient coverage. Our previous decision
affirmed the Agency’s dismissal of the complaint for failure to state a claim.

In her request for reconsideration, regarding Claim 1, Complainant argued that the PSA’s
promotion was a form of retaliation against her. However, we found that this claim fails to affect
a term, condition or privilege of Complainant's employment. We also found that the allegations
in Claims 2 and 3 are not sufficiently severe or pervasive to create a hostile work environment
for a reasonable person. Additionally, we found no indication that all three events were part of a
pattern of harassment or reasonably likely to deter Complainant from engaging in protected EEO
activity.

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), at 9-18 (Aug. 5, 2015); 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. Complainant essentially raises similar arguments to those
previously raised or otherwise not relevant to the issues herein.

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. 0120172773 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.
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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 11, 2018
Date