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

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2019002728 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marjorie C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021000810 Appeal No. 2019002728 Hearing No. 440-2018-00223X Agency No. 200J05372016104273 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Marjorie C. vs. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002728 (Sept. 30, 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). During the period at issue, Complainant worked as a Medical Instrument Technician, GS-8, at the Agency’s VA Medical Center in Chicago, Illinois. On July 14, 2016, Complainant filed a formal EEO complaint claiming that the Agency discriminated against and subjected her to a hostile work environment her based on race (African-American) and disability 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. 2021000810 2 1. on May 31, 2016, a Supervisor (S1) constantly surveilled Complainant, questioned why she was not at work, and ordered her to a meeting; 2. on June 1, 2016, S1 intimated and falsely insinuated that Complainant was being deceitful about the completion of TMS classes; 3. on June 8, 2016, while Complainant was in the Computer room, S1 opened the door without knocking, saw her standing in the room and closed the door. S1 contacted a union official and stated he was looking for Complainant but could not find her; 4. on June 10, 2016, S1 called Complainant’s cell phone while she was leaving work for the day and stated he needed to speak with her; 5. on June 13, 2016, the Chief of Nursing Service and S1 denied Complainant’s reasonable accommodation and sent her home; and 6. on June 14, 2016 to October 28, 2016, S1 marked Complainant’s time and attendance record as absent without leave (AWOL) although she was on leave without pay (LWOP). The Agency issued a final decision on January 23, 2019, finding no discrimination.2 In EEOC Appeal No. 2019002728, the Commission determined that the Agency did not violate the Rehabilitation Act. The decision found that the Agency provided Complainant a reasonable accommodation when it offered Complainant, on June 3, 2016, the position of Modified Instrument Technician in the Hemodialysis Unit, Nursing Section. The decision acknowledged Complainant’s assertion that she had a medical restriction that included a 10-pound lifting limitation.3 However, the decision specified that the Agency offered the Modified Instrument Technician position based on the results of Complainant’s April 28, 2016 Functional Capacity Evaluation which reflected a 14-pound lifting limitation.4 Therefore, the decision found that the Agency did not violate the Rehabilitation Act because it offered Complainant a position within her medical restrictions. 2 Complainant initially requested a hearing by an EEO Administrative Judge but subsequently withdrew her hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 3 The record includes physician notes dated January 7, 2014, and March 23, 2015, indicating that Complainant had a lifting restriction of 10-pounds. 4 A copy of the April 28, 2016 Functional Capacity Evaluation states that Complainant had bilateral carrying and lifting ability up to 14-pounds. 2021000810 3 Regarding Complainant’s claims of discriminatory harassment, the decision determined that these alleged harassing incidents identified in claims 1 through 4 involved common workplace occurrences and were not severe or pervasive enough to constitute a viable claim of workplace harassment. Finally, the decision determined that Complainant had not proven that she was discriminated against when she was temporarily charged AWOL. The decision found that the incorrect AWOL entries were corrected when it became apparent that Complainant was requesting Family & Medical Leave Act (FMLA) leave. The decision further found that Complainant was not disciplined as a result of the incorrect AWOL entries, and therefore, Complainant was not an aggrieved individual who suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In the instant request for reconsideration, Complainant, through counsel, submits a statement expressing disagreement with the appellate decision and reiterates arguments previously made on appeal.5 However, 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. 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. 2019002728 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. 5 On appeal, Complainant only disputes the Commission’s determination that Complainant had a 14-pound lifting restriction and asserts that Complainant had a 10-pound lifting restriction. 2021000810 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 April 22, 2021 Date