Vince D.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 7, 20180520180017 (E.E.O.C. Feb. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vince D.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Request No. 0520180017 Appeal No. 0120170383 Hearing No. 520-2015-00058X Agency No. 200H-0620-2014-101310 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120170383 (August 31, 2017). 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). In his underlying complaint, Complainant claimed that he was discriminated against on the basis of his race (African-American) when on December 9, 2013, he was not selected for the position of Recreation Therapist Supervisor. An EEOC Administrative Judge (AJ) granted the Agency’s Motion for a Decision Without a Hearing. The AJ found that no discrimination occurred. The AJ stated that Complainant was interviewed for the relevant position by a three-member panel. The panel ranked the candidates 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. 0520180017 2 according to their scores and submitted a list of four candidates who scored above thirty points to the selecting official for personal interviews. Complainant’s score was below thirty points and therefore he was not interviewed by the selecting official. The AJ found that other than the proffer of personal opinions and interpretations, Complainant failed to introduce any relevant evidence to demonstrate that the Agency’s explanation was pretext for discrimination. In its final order, the Agency implemented the AJ’s Decision. On appeal, the Commission affirmed the Agency’s final order. We stated that even construing any inferences raised by the undisputed facts in Complainant’s favor, a reasonable factfinder could not find in favor of Complainant. In his request for reconsideration, Complainant contends that he was rushed through his interview and was not advised of the scoring system prior to or after his interview. Complainant also raises a claim of reprisal in his request to reconsider that he previously raised on appeal. Complainant claims that the selecting official was influenced by an official at the New York State Veterans Home at Montrose, where Complainant worked part-time. Complainant states that he had filed a complaint against this official alleging race discrimination. Complainant maintains that the selecting official and one of the members of the interview panel harbored racial animus toward him and sabotaged his promotion through manipulation of the selection criteria by not adhering to personnel promotional procedures. Complainant claims that the selecting official had a reputation for making racist and ethnic jokes at work. Complainant argues that African-American Recreation Therapists are transferred to less prestigious or desirable work assignments, which does not happen to Caucasian Recreation Therapists. The Commission emphasizes 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 presented any persuasive evidence to support reconsideration of the Commission’s decision. Complainant has not demonstrated that the Agency’s explanation for his nonselection was pretext intended to hide discriminatory intent. 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. 0120170383 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 0520180017 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 7, 2018 Date Copy with citationCopy as parenthetical citation