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

Equal Employment Opportunity Commission

Feb 22, 2022

Appeal No. 2020002255 (E.E.O.C. Feb. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elise S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2022000226 Appeal No. 2020002255 Agency No. 200H-0646-2017104850 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020002255 (September 16, 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). During the relevant time, Complainant worked as a Registered Respiratory Therapist at the Agency’s Pittsburgh VA Healthcare System facility in Pittsburgh, Pennsylvania. Complainant filed a formal complaint, that was subsequently amended, claiming discrimination and hostile work environment harassment based on disability and in reprisal for prior protected activity. Initially, she alleged that she was subjected to harassing comments and emails, unfair scheduling, orientation training, and committee participation; her work and time management was scrutinized; she was asked to provide additional medical documentation; she was accused of abusing sick leave; she had her lights turned off; and she was subjected to inappropriate postings 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. 2022000226 2 on her locker and an unfair division of work assignments. She also alleged that her first-level supervisor instructed her to provide medical certification for weekly medical appointments, she was bypassed for overtime on three dates, and her second-level supervisor instructed her to provide medical certification for her weekly medical appointments. She amended her complaint to allege that other employees continued to turn off the overhead lights whenever Complainant left the room and then turn off the task lights when she turns the overhead lights back on; she has had to use a mobile computer workstation that she felt was unsafe; she had to use sick leave to take the day off because of the hostile work environment; she was bypassed when overtime was made available to other employees; and, when she learned that a new schedule had been posted that denied her earlier request for a reasonable accommodation and after she tried to discuss it with her second-level supervisor, he told her that things were escalating and she could not come into his office and speak to him without a union representative. The Agency dismissed several of the claims in the initial complaint as untimely, noting that they were not raised with an EEO Counselor within 45 days of their occurrence. However, the Agency still considered these claims as related to the overall harassment claim. After an investigation, Complainant requested a final agency decision (FAD). In accordance with Complainant’s request, the Agency issued its first FAD, addressing only the initial claims, concluding that Complainant failed to establish a link between the alleged harassing conduct and her disability or prior EEO activity and to prove the alleged discrimination, noting the Agency had provided legitimate, nondiscriminatory and non-retaliatory reasons for its actions. The Agency rescinded the first FAD and issued a second FAD that included the amended claims. The second FAD reaffirmed the dismissal of the untimely claims and found that, even upon considering the amended claims, Complainant still failed to establish a link between the alleged harassing conduct and her disability or prior EEO activity necessary to prove the alleged discrimination and retaliation, as the Agency had provided legitimate, nondiscriminatory and non-retaliatory reasons for its actions. Complainant appealed. In EEOC Appeal No. 2020002255, the Commission affirmed the Agency’s FAD finding no discrimination or unlawful retaliation. In the instant request for reconsideration, we have carefully reviewed Complainant’s arguments and determine that the matters either were raised or could have been raised below. We note that during the original appeal from the Agency’s final order, Complainant presented a number of arguments, which have been essentially replicated in the instant request. We emphasize 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), 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. Complainant has not done so here. 2022000226 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. 2020002255 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 February 22, 2022 Date