[Redacted], Merlin J., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020003022 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merlin J.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Request No. 2021000977 Appeal No. 2020003022 Hearing No. 410-2016-00346X Agency No. 200I-0509-2015104270 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003022 (October 19, 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 was an applicant for the Program Specialist, GS-7/9, position at the Agency’s Norwood VA Medical Center in Augusta, Georgia. At the time of his application, Complainant was working as an Accountant Technician at the Eisenhower Army Medical Center and was not an employee of the Agency. Complainant had prior EEO activity against the Eisenhower Army Medical Center. He served as a union representative while working at the Eisenhower Army Medical Center. 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. 2021000977 2 In his role as a union representative at the Medical Center, Complainant had union grievance- related interactions with the Chief Nurse of Ambulatory of the Norwood VA Medical Center who was previously an employee at the Eisenhower Army Medical Center. On September 30, 2015, Complainant filed a formal EEO complaint claiming the Agency discriminated against him in reprisal for prior EEO activity when on July 7, 2015, he was not selected for the position of Program Specialist GS-7/9, advertised under Announcement Number OD-14-RH1058655-100, although on May 4, 2015, he was offered the position. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Following the hearing, the AJ determined that Complainant failed to establish a prima facie case of retaliation. She noted that Complainant had shown that he engaged in prior protected activity, and had shown that he was subjected to adverse treatment by the Agency in that he was not hired for the subject position. The AJ stated, however, Complainant failed to show that the Agency was aware of his prior protected activity against another employer, and he also failed to show a nexus between the protected activity and adverse action. Moreover, the AJ stated assuming arguendo that Complainant “was able to establish a prima facie case of reprisal, I find that the Agency articulated a legitimate, non-discriminatory reason for its actions. The Agency decided not to fill the position at issue because of on-going budget concerns and because of an internal employee relations issue necessitating the transfer of a current employee to work in [Chief Nurse, Operations, also the selecting official’s] area. Complainant failed to prove that the Agency’s articulated reasons for its action was a pretext for discrimination.” In the prior appellate decision, the Commission affirmed the AJ’s determination that Complainant failed to prove his discrimination claims. In his request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during his original appeal. 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. 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. 2020003022 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021000977 3 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, 2021 Date