[Redacted], Kathie N., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 17, 2021Appeal No. 2020003506 (E.E.O.C. Aug. 17, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathie N.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021003219 Appeal No. 2020003506 Hearing No. 520-2019-00279X Agency No. 200H-0523-2018101294 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003506 (March 23, 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 the relevant time, Complainant was employed by the Agency as a VN-0610- 3 Nurse in Brockton, Massachusetts. On March 20, 2018, Complainant filed a formal complaint, which she subsequently amended, alleging discrimination by the Agency national origin based on (Cape Verdean/African- American) and in reprisal for prior protected EEO activity 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. 2021003219 2 1. On unspecified dates, she was overly criticized; 2. In August 2017, she was accused of crossing boundaries; 3. In August 2017, she was temporarily detailed; 4. On August 6, 2017, her tour of duty was changed from four days per week, ten hours per day, to 7:00 a.m. to 3:30 p.m., Monday through Friday; 5. In November 2017, she was accused of wrongdoing and was the subject of a fact-finding investigation; 6. Effective December 25, 2017, she was detailed to another position, although she was originally told that she was being reassigned to that position; 7. On January 3, 2018, she did not receive compensation for a course she completed; 8. As of January 6, 2018, she was demoted from a Nurse Manager to a Staff Nurse, which promoted a decrease in pay; 9. On February 27, 2018, Human Resources excluded her from the application process by informing her that her application for the Resident Assessment Instrument and Minimum Data Set position was not received; and 10. On or about May 21, 2018, she was not selected for the Minimum Data Set Coordinator position advertised under vacancy announcement #CAZW-10172903-18-BP. After its investigation, 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 Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding no discrimination. In her decision, the AJ determined that the Agency’s Statement of Undisputed Material Facts (Statement) as well as sources in the Request for Reconsideration “are indeed accurate and supported by the record. The Complainant failed to respond to the Motion, and therefore I find she does not contest the material facts set forth in the Statement. Therefore, I find the Agency’s material facts are undisputed, and I incorporate by reference the Agency’s Statement as if fully set forth herein.” In EEOC Appeal No. 2020003506, we concluded that the evidence of record fully supported the AJ’s decision that Complainant’s allegations of discrimination had not been proven. In her request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during her original appeal. 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. In addition, the Agency argued that Complainant’s attempt to introduce new evidence at this late date was inappropriate because she failed to file a response to the Agency’s Motion for 2021003219 3 Summary Judgment and failed to file a brief in support of her appeal to the Commission. Moreover, the Agency properly argued that Complainant cannot seek to have new evidence considered as part of a request for reconsideration. 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. 2020003506 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 August 17, 2021 Date Copy with citationCopy as parenthetical citation