Tera B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 28, 2019

2019004135 (E.E.O.C. Aug. 28, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tera B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 2019004135

Appeal No. 0120171354

Agency No. 200J04382016101507

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120171354 (April 24, 2019). 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).

Complainant was an applicant for employment with the Agency. Complainant filed an EEO
complaint alleging she was discriminated against on the basis of disability when: (1) on
November 9, 2015, she was advised that her request for reasonable accommodation was denied;
and (2) on December 12, 2015, she received a letter stating that the offer of employment to hire
her as a Physician in the Compensation and Pension Unit at the facility in Sioux Falls, South
Dakota, was withdrawn.

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.
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2
Complainant did not request a hearing, and in accordance with Complainant’s request, the
Agency issued a final decision based on the evidence developed during the investigation. Our
prior appellate decision affirmed the Agency’s final decision that concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged. The decision found
that even if Complainant is a person with a disability, the record indicated that she was unable to
perform the essential functions of the position she sought and, therefore, was not qualified.
Further, to the extent Complainant established a prima facie case of discrimination, the decision
found that the Agency articulated legitimate, nondiscriminatory reasons for its decision.

In her request for reconsideration, Complainant expresses her disagreement with the previous
decision, and reiterates some of her arguments made on appeal. She presents affidavits and
continues to question the veracity of the Agency’s articulation of facts. As noted in the previous
decision, Complainant did not request a hearing and we do not have the benefit of an EEOC
Administrative Judge’s credibility determinations after a hearing. 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. 0120171354 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.
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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 28, 2019
Date