[Redacted], Arlette W., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 0720170039 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arlette W.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Request No. 2021004007 Appeal No. 0720170039 Hearing No. 420-2011-00127X Agency Nos. CR990126 & FSIS-2010-00965 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0720170039 (May 6, 2021). 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 two EEO complaints that were consolidated. In those complaints, she alleged that the Agency subjected her to discrimination: (1) based on race (Black) and sex (female) when, in January 1998, the Agency failed to consider her application for employment as a Supervisory Veterinary Medical Officer, GS-0701-11, New Brockton, Alabama; and (2) based on race, sex, and reprisal for her prior EEO activity when, in June 2010, she was informed by the FSIS Human Resources Field Office that her official personnel file continued to reflect a 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. 2021004007 2 termination from employment dated February 5, 1993. Following the Agency’s investigation of the claims, Complainant timely requested a hearing. An EEOC Administrative Judge (AJ) held a hearing and issued a decision finding that Complainant proved her allegations of discrimination with respect to both claims. However, the Agency issued a final order rejecting the AJ’s findings and conclusions and appealed to the Commission. In a lengthy decision in EEOC Appeal No. 0720170039, we set aside the AJ’s finding of discrimination and affirmed the Agency’s final order. In her Request for Reconsideration, Complainant argues that we failed to apply the correct legal standard for inferring discrimination based on race under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We disagree. Complainant further argues that, having established a prima facie case, the finding by the EEOC Administrative Judge (AJ) that the testimony of the Personnel Staffing Specialist was not forthright and indeed was “untrue” is sufficient to find that the Agency’s action was premised on race. However, this same argument was raised in the initial appeal and fully discussed in our decision in EEOC Appeal No. 0720170039. We remind Complainant 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) 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. 0720170039 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. 2021004007 3 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 November 29, 2021 Date