[Redacted], Chanell A., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 4, 2022

Appeal No. 2021002373 (E.E.O.C. Oct. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chanell A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022002881 Appeal No. 2021002373 Hearing No. 430-2019-00324X Agency No. 2004-0652-2018105108 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021002373 (March 31, 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). Complainant’s request for reconsideration is DENIED. BACKGROUND At the time of events giving rise to this complaint, Complainant was a former Agency employee who retired in 2016, and an applicant for employment. 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. 2022002881 2 On October 24, 2018, Complainant filed an equal employment opportunity complaint alleging that the Agency discriminated against her based on her age (81) when on June 18, 2018, Complainant was not selected for a position as a Social Worker (GS-11), under vacancy announcement number CBCA-10114532-18-DMH. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and her notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ issued a Notice of Intent to Issue a Decision Without a Hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ noted that the Agency tentatively selected Complainant for the position but rescinded the offer based on the reference from Complainant’s former supervisor (S1). Specifically, S1 reported that Complainant’s performance was “below average to satisfactory,” with the main issues of keeping track of patients and keeping up to date with therapy tools. S1 added that she recommended Complainant “with reservations.” While Complainant alleged that S1’s supervisor (S2) made comments that Complainant was “too old” and “needed to retire,” the AJ determined that no one associated with her non-selection made a comment related to her age. Complainant may believe that S2 negatively affected S1’s opinion of Complainant’s performance, but she provided no evidence that S2 influenced S1. The AJ concluded that further development of the record was unlikely to lead to a finding of discrimination and awarded summary judgment for the Agency. When the Agency did not issue a final order, the AJ’s decision became the Agency’s final action. Complainant appealed the Agency’s final action. The appellate decision affirmed the Agency’s final action, finding that Complainant failed to establish a genuine dispute of material fact. Complainant alleged that there was a dispute regarding the material facts of whether S2 made discriminatory remarks about her age and if S1 gave Complainant a favorable recommendation. However, even assuming that S2 made ageist comments, the record did not show that S2 was contacted to give a reference for the vacancy at issue. In addition, even if S1 gave Complainant a “poor” recommendation, Complainant did not allege that evidence existed that S1 harbored a discriminatory animus due to Complainant’s age. Complainant argued that S1’s credibility was at issue because the official who conducted Complainant’s background investigation reported that S1 responded that Complainant’s performance was “below average to satisfactory,” while S1 testified that Complainant’s performance was rated as “fully successful.” However, the appellate decision determined that these responses were sufficiently analogous because Complainant’s recommendation came “with reservations.” While Complainant posited a cat’s paw theory and asserted that S2’s ageist animus can be attributed to S1, even if S1 held no discriminatory animus, Complainant did not show that S2 was even aware that S1 was contacted about Complainant’s application. 2022002881 3 The appellate decision concluded that Complainant’s argument was too speculative to justify a reversal of the AJ’s decision. Complainant filed the instant request for reconsideration and filed a brief in support of her request. The Agency opposed Complainant’s request. ANALYSIS AND FINDINGS 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. Through her attorney, Complainant argues that the appellate decision should be reversed because there are numerous outstanding questions of material fact and credibility issues. For example, Complainant asserts that S1 testified that she rated Complainant as “fully successful,” which was untrue because S1 reported that Complainant’s performance was “below average to satisfactory”; and that it is “difficult to imagine” that S2 did not share her opinions about Complainant’s age with S1. However, we find that Complainant simply repeats the arguments presented in her initial appeal and merely disagrees with the appellate decision. A request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Chap. 9 § VI.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. Here, we find that Complainant has not identified a clearly erroneous interpretation of material fact or law in the appellate decision. Therefore, we DENY the instant request for reconsideration. The decision in EEOC Appeal No. 2021002373 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. 2022002881 4 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 4, 2022 Date