[Redacted], Josefina P, 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 14, 2021

Appeal No. 2019003236 (E.E.O.C. Jan. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Josefina P,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Request No. 2021000245 Appeal No. 2019003236 Hearing No. 560-2018-00006X Agency No. 200J06572016105211 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019003236 (September 15, 2020). 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). On December 13, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to unlawful discrimination when: 1. She was subjected to disparate treatment based on sex (female) when, on October 15, 2015, Complainant became aware that when she was hired in 2005, as a Nurse, II, Step 2, her pay 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. 2021000245 2 should have been set at a higher pay rate because a new male coworker with less education and experience that her was hired at the same pay level (Nurse II, Step 2). 2. She was subjected to disparate treatment and a hostile work environment on the bases of race (Caucasian), sex (female), and age (over 40) when: a. In 2012, Complainant was denied a detail to the position of Nursing Supervisor by the Nurse Supervisor/Nurse Manager 1. b. In 2015, Acting Nurse Manager/Nurse Manager 2 denied Complainant's leave request however she approved a leave request for a younger African American female for the same dates Complainant requested. c. In early 2016, a coworker (Coworker 1), complained to the Union or Human Resources about Complainant working both weekends, however, Coworker 1 has not complained about another coworker, Coworker 3. d. In 2016, and continuing, Coworker 1 and Coworker 2 make denigrating remarks about Complainant when she is not at work. e. In early 2016, Coworker 2 played a practical joke on Complainant by holding the door closed when Complainant was attempting to open it to enter into work. f. In February 2016, and continuing to July 2016, Nurse Manager 2 favored Asian and younger employees when he manipulated Complainant's work schedule, took away her scheduled weekends, and scheduled a younger Asian female coworker to work the same weekend shifts for overtime. g. On February 13, 2016, Nurse Manager 2 changed Complainant's work schedule, thereby shortening Complainant's approved leave. h. On February 20, 2016, Complainant's weekend night tour was taken away. i. In early July 2016, Complainant found a large adult diaper on a cart. When Complainant asked who it belonged to, Coworker 2 stated, “it's yours [Complainant’s first name]” and laughed. j. In early 2016, while Complainant was looking at the new schedule, Coworker 2 passed by and laughingly stated, “I will still work.” k. In July 2016, Coworker 3 called Complainant while she was on leave and inquired about Complainant's leave schedule in an effort to pry into Complainant's business. 2021000245 3 l. In July 2016, Complainant received suspicious private telephone calls and suspicious calls from the 337 exchange, while she was on leave. m. In August 2016, and continuing to September 2016, Nurse Manager 2 favored Asian and younger employees when he manipulated Complainant's work schedule, taking away her scheduled weekends, and allowed younger male coworkers with less seniority to work overtime on weekends. n. On or about October 7, 2016, and continuing, Coworker 2 and Coworker 1 make derogatory remarks about her when she is not there such as what they will do to her when they are in charge. o. On October 7, 2016, a Charge Nurse (Coworker 1) chastised Complainant in front of a coworker (Coworker 4), regarding a patient going “AMA” (Against Medical Advice). p. In October 2016, Coworker 1 questioned Complainant in a harassing manner when Complainant simply asked her to do something. q. On November 26, 2016, the Nurse Manager 3 allowed two Caucasian male coworkers and an African American coworker to work weekend shifts while Complainant was denied her requested shift despite Complainant having more seniority. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but subsequently withdrew her request. The Agency issued a final decision based on the evidence developed during the investigation concluding no discrimination was established. Complainant appealed. In EEOC Appeal No. 2019003236, we affirmed the Agency’s final decision determining the evidence of record did not establish that discrimination had occurred. During her original appeal from the Agency final decision, Complainant provided extensive documentation and arguments, which were considered in rendering the decision in in EEOC Appeal No. 2019003236. In the instant request for reconsideration, Complainant, in essence, reiterates those same arguments. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. 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. 2021000245 4 The decision in EEOC Appeal No. 2019003236 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 January 14, 2021 Date