EEOC Appeal 2020001083

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Scarlet S.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 2020001083
Appeal No. 0120180731
Agency No. HHSSAM00072016
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180731 (September 19, 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 employed as a Management Analyst, GS-09, at the Agency’s Substance Abuse
and Mental Health Services Administration in Rockville, Maryland. Complainant filed an EEO
complaint alleging she was subjected to discrimination and harassment on the bases of national
origin (Mexican), disability, age and reprisal. In support of her claims, Complainant raised 25
allegations that included, but were not limited to, work assignments, being ostracized and
isolated, being denied promotions, her first level supervisor criticizing and chastising her, and
multiple leave issues including medical documentation being requested.
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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Complainant requested that the Agency issue a decision on her claims. 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 with regard to the majority of the
allegations. However, our appellate decision determined that two allegations (allegations 3 and
25), which both raised the June 2016 denial of a promotion to the GS-11 level, should be
remanded to the Agency for a supplemental investigation. The decision noted that Complainant
was placed on a six-month performance plan before receiving her promotion, while a co-worker
(“C1”) was allegedly only given a two-month performance plan before receiving his promotion,
and the record did not provide sufficient information to explain why the supervisor (“S1”) did
this.
In her request for reconsideration, Complainant focuses her disagreement with our appellate
decision primarily on one allegation concerning the requirement by Agency management that she
provide medical documentation to cover her absences. Upon review, we find that the prior
decision properly determined that Complainant did not show that the request for medical
documentation was taken because of any discriminatory reason. Complainant has not established
any reason to revisit our analysis of this issue.
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. 0120180731 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
Within 90 (ninety) calendar days of receipt of this ORDER, the Agency shall conduct a
supplemental investigation, to include the following actions:
(a) The Agency shall obtain an affidavit from S1 or another person with knowledge,
indicating when C1 was promoted; whether he was only required to complete a two-
month evaluation period; and, if so, why his evaluation period was only two months
while Complainant was required to complete a six-month period.
(b) The Agency will provide documentation establishing the exact promotion dates of
both Complainant and C1 to the position of Management Analyst, GS-343-11.
(c) Upon completion of the investigation, the Agency shall issue a new final decision
addressing the merits of allegations 3 and 25 with appeal rights to the Commission.

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The Agency must provide Complainant with a copy of the supplemental record and
findings and return the completed record along with a copy of the new final decision to
the Compliance Officer, as referenced below.
In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this
remanded case in order to comply with the time frames contained in this Order. The Office of
Federal Operations will issue sanctions against agencies when it determines that agencies are not
making reasonable efforts to comply with a Commission order to investigate a complaint.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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.

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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
May 8, 2020
Date