Virginia V.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 22, 2016

0520160471 (E.E.O.C. Sep. 22, 2016)

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

Virginia V.,1
Complainant,

v.

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

Request No. 0520160471

Appeal No. 0120161895

Agency No. 2003-0647-2011100930

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120161895 (July 21, 2016). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision 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 filed an EEO complaint that was settled on April 18, 1997. The settlement
agreement provided in pertinent part, that the Agency would:

(b) Temporarily reassign [Complainant] full-time to the Radiology Department
while her position is being evaluated to address “reasonable accommodation”
dictated by [her] physical impairment/s/. While assigned to the Radiology
Department, it is agreed you will be given the opportunity to perform specific
assignments in Physical Therapy in order to make a determination about those
duties which you can perform in that department without hardship or damage to
yourself or others.

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.
0520160471

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(c) Within 3 months of the signing, of this agreement, a position description with
performance standards will be developed to incorporate the essential duties of
the positions which [Complainant] can perform. This will be a unique job
description designed for [Complainant] only and will meet your current grade
level as well as the target grade level of the position you are currently assigned.
(GS-3 Target GS-5 Retaining full-time employment status.) It is further agreed
that if the duties of the two positions identified above do not classify to the
target grade of GS-5, both parties agree to come together to discuss and/or
expand the duties as necessary to meet the intended grade level and performance
expectations of a position within Ancillary & Diagnostic Service.

In March 2016, Complainant claimed breach of the 1997 settlement agreement. Complainant
claimed that she had no input on her job description and was assigned a job in the Programatic
Service Department as a Timekeeper and Leave Clerk. Complainant also claimed that her
supervisor intended to give her job duties to the higher paid employees and remove her. In its
final decision, the Agency determined that it did not breach the settlement agreement as to
Complainant’s claim concerning what position she would be assigned to and what her duties
would be. Further, the Agency reasoned that the settlement agreement was executed nineteen
years earlier and it was no longer reasonable to expect it to be bound by terms that are possibly
stagnant and no longer feasible to maintain. Additionally, with regard to the claims concerning
her supervisor intending to remove her, not promoting her and not submitting her position
description for classification, the Agency stated that these matters should be raised as
subsequent acts of discrimination and be processed as a new, separate complaint.

On appeal, the Commission addressed Complainant’s arguments and found that the Agency
properly determined that it had not breached the settlement agreement. We noted that the
Agency’s alleged actions, almost two decades after the execution of the settlement agreement,
were not a violation of the agreement.

In her request for reconsideration, Complainant reiterates arguments previously raised and
addressed on appeal. 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) (Aug. 5, 2015), at 9-18; 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. 0120161895 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request.
0520160471

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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

September 22, 2016
Date