0520180098
03-06-2018
Will K,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Will K,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520180098
Appeal No. 0120161962
Hearing No. 520-2014-00342X
Agency Nos. 200H-0632-2009-104076 and 200H-0632-2009-102647
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120161962 (August 30, 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).
Complainant worked as a Nursing Assistant, GS-5, at the Agency's Northport Veterans Affairs Medical Center in Northport, New York.
Complainant filed two EEO complaints that were consolidated. Complainant alleged that he was subjected to unlawful retaliation for prior EEO activity when he was made to work overtime on five occasions between June 13, 2009, and September 6, 2009; and when, between August 3, 2009 and March 15, 2010, he was not selected for two Nursing Assistant positions and a Health Technician position. Complainant also alleged that he was discriminated on the bases of sex and age when he was not selected for the position of Health Technician on February 28, 2010, and the position of Nursing Assistant on March 15, 2010.
Our prior appellate decision affirmed the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision by summary judgment which found in favor of the Agency, concluding Complainant failed to prove his discrimination claims. In her decision, the AJ found that while Complainant was mandated to work three hours and twenty-five minutes of overtime between June 13, 2009 and September 6, 2009, the evidence did not establish that his supervisor was aware of his previous EEO activity. As such, the AJ concluded there was no showing of a causal connection between the overtime and his EEO activity. As to his non-selections, the AJ found that responsible management officials articulated legitimate, non-discriminatory reasons for the selections made, which Complainant failed to prove were pretext for unlawful retaliation or discrimination.
In his request for reconsideration, Complainant criticizes the AJ, and now appears to raise a claim of race discrimination for the first time by arguing that black employees were treated more favorably. 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. 0120161962 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. 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
March 6, 2018
__________________
Date
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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