[Redacted], Angela L., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2021005131 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angela L.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Request No. 2022003327 Appeal No. 2021005131 Hearing No. 540-2018-00133X Agency No. HHS-HIS-0298-2017 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021005131 (April 28, 2022). 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 this complaint, Complainant worked as a Clinical Dietician, GS-0630-11, at the Agency’s Gallup Indian Medical Center (GIMC) in Gallup, New Mexico. On June 28, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Caucasian) and religion (Quaker-Religious Society of Friends) when from October 2016 to the present, Complainant was subjected to harassment when: 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. 2022003327 2 a. Management treats subordinates differently when birthday parties are held for some employees and not for others. Complainant states she feels like the “redheaded step- child” and is not one of management's favorite; b. Complainant requested leave October 2016 to attend a religious conference and did not receive approval until June 2017. It was not until Complainant told management that she was resigning June 23, 2017, that management approved her leave request. Complainant states management requested she put the leave request in writing and she is the only Dietician required to put her leave request in writing and her coworkers have their leave request granted and displayed on the posted schedule in a timely manner. Complainant contends she is being treated differently because she is the only Anglo in the Dietician Department; c. Complainant has worked four different work schedules and tours of duty and as a result she has to re-submit her leave request; and d. Complainant's verbal leave requests were denied in December 2016 due to other Registered Dieticians being on leave.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. When the Agency failed to issue a final order within 40 days of receipt of the AJ's decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). Complainant appealed. Our decision in EEOC Appeal No. 2021005131 affirmed the Agency’s final order implementing the AJ’s decision finding no discrimination. This request for reconsideration followed. In her request, Complainant alleges that the prior decision was based on erroneous information and asks that the Commission reconsider its decision in EEOC Appeal No. 2021005131. Complainant provides documents in support of her request which were previously provided in the record of EEOC Appeal No. 2021005131. However, we find that Complainant has provided no evidence to warrant granting her request. 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 Chap. 9 §VII.A. (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. 2 Complainant withdrew an additional claim. 2022003327 3 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. 2021005131 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 October 31, 2022 Date