0520180134
04-05-2018
Chara S,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chara S,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Request No. 0520180134
Appeal No. 0120161925
Hearing No. 443-2013-00020X
Agency No. HS-11-FEMA-00055
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120161925 (September 21, 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 had worked as grade level GS-11 Public Assistance Project Specialist at the Agency's Federal Employment Management Agency (FEMA) in the Iowa Closeout Center (ICC) in West Des Moines, Iowa. FEMA provides emergency assistance and oversight to state and local agencies during periods of disaster. Complainant first began working for Agency in 2008 and worked intermittently from January 3, 2010 to November 19, 2010. The Agency released Complainant on November 19, 2010, when the work was completed. Prior to her release in 2010, Complainant applied for the position of Cadre of On-Call Response to Recovery (CORE) Public Assistance Closeout Specialist. There was more than one such position to be filled. In October 2010, Complainant learned that she was not selected for the position, although she was deemed qualified. Subsequently, on March 16, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American) and color (brown) when she was not selected for one of the positions of Public Assistance Closeout Specialist.
After investigation of her complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ held a hearing on November 21, 2013 and issued a decision on September 26, 2014. On October 29, 2014, the Agency subsequently issued its decision which adopted the AJ's finding that the Agency had discriminated against Complainant when it did not select her for one of the vacant positions. In finding discrimination, the AJ concluded that Complainant was entitled to make whole relief pursuant to 29 C.F.R. � 1614.501. The Agency had to place Complainant in the position for which she would have been selected were it not for unlawful discrimination. The AJ ordered the Agency to take remedial action which the Agency adopted.
Complainant filed an appeal with the Commission. She argued that, despite "multiple attempts" and "countless communications" and requests, the Agency has failed to fully implement the relief and has provided no meaningful response to Complainant's request to address "deficiencies" in compliance. The Agency argued that Complainant's appeal was improperly before the Commission and that it had complied with the AJ's orders to the extent it could and that its failure to comply was due to Complainant's failure to provide the Agency with information.
The previous decision held that Complainant's appeal was timely raised and that she, through her counsel, had communicated with the Agency as early as December 2015 regarding compliance with the AJ's decision. Therefore, the previous decision concluded that Complainant was not untimely in her appeal seeking compliance with the Agency's final order.
The previous decision then addressed the remedies awarded by the AJ and considered whether the Agency complied with the AJ's orders. As to the job offer, the previous decision noted that the Agency had closed down the Des Moines, Iowa facility in November 2013, before the AJ issued his decision on September 26, 2014. The AJ also ordered the Agency to offer to promote Complainant to the position of Public Assistance Closeout Specialist, GS-11 in West Des Moines, Iowa or some other mutually agreeable position/location. The previous decision held that the Agency failed to provide evidence that it offered a "mutually agreeable" position as such, it could not find that the position offered was in compliance with the AJ's order. The decision then turned to the Agency's award of back pay. The decision noted that the record was not complete or clear in order to enable the Commission to properly determine back pay. The decision indicated that the record the Agency provided showed that Complainant had already achieved the GS-11 level prior to the non-selection. As such, it stated that the record did not explain why Complainant would not have received a higher level of pay. Similarly, the previous decision noted with respect to TSP that Complainant had reached out to an Agency contact regarding TSP contributions but there was no information in the record concerning the result of Complainant's contact. The previous decision noted that Complainant may be entitled to overtime and other benefits as well as adverse tax consequences. Based on the Agency's failure to provide an adequately developed record, the previous decision found that the matter should be remanded to the Agency for further clarification regarding its compliance with AJ's orders.
The Agency requested reconsideration challenging the decision's analysis. The Agency argued that Complainant was not at the GS-11 level at the time of the non-selection. However, upon review of the record, we note that the Agency included a copy of Complainant's Standard Form 50 which indicated that Complainant was paid at the GS-11, step 1 level by October 2010, at the time of the non-selections at issue. The Agency also argued that Complainant would have been terminated by November 29, 2013, based on the closure of facility. However, the Agency implemented the AJ's decision including remedies and the Agency did not raise this matter in response to Complainant's appeal. As such, the AJ's order providing for an "offer to promote Complainant to the position of Public Assistance Closeout Specialist, GS-11, in West Des Moines, Iowa (or some other mutually agreeable position/location)" stands. The Agency also challenged the previous decision's findings regarding benefits and overtime. We are not persuaded noting that the pervious decision merely stated that the record provided by the Agency was not sufficient to determine whether the Agency had complied with the AJ's award of back pay and other benefits due to Complainant.
Upon review of the request for reconsideration, we find that the Agency expresses its disagreement with the previous decision. 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. The Agency 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. 0120161925 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
To the extent that it has not already done so, the Agency is ordered to take the following remedial actions within one hundred twenty (120) calendar days of the date of this decision:
1. The Agency shall offer to promote Complainant to the position of Public Assistance Closeout Specialists GS-11 in West Des Moines, Iowa (or some other mutually agreeable position/location), within 30 days. Complainant shall be given a minimum of 30 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the time period set by the Agency will be considered a rejection of the offer, unless Complainant can show that circumstances beyond her control prevented a response within the time limit.
2. The Agency shall determine and pay Complainant back pay (with interest, if applicable) and other benefits due Complainant pursuant to 29 C.FR. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Agency's determination shall be based on the fact that, absent discrimination, Complainant would have been selected for Public Assistance Closeout Specialists GS-11 in October 2010, and subsequently would have received all career ladder promotions to which an employee who performed in a fully successful manner was entitled. If Complainant declines to accept the promotion with the Agency, the back pay period for the Public Assistance Closeout Specialists GS-11 position shall end on the date she declines the offer of promotion.
The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated.
The Agency shall provide to Complainant a clear and detailed plain language explanation of its back pay calculations, including the calculation of all benefits provided to Complainant. The Agency shall also provide documentation supporting its calculations and information concerning who prepared the computations and any relevant Agency policy or Office of Personnel Management guidelines. The Agency shall provide Complainant with a reasonable opportunity to respond to its back pay and other calculations. Complainant must cooperate with the Agency in providing information requested by the Agency where the information is appropriate and relevant to calculating a back pay determination.
If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within thirty (30) calendar days of the date the Agency determines the amount it believes to be due.
3. The Agency shall pay Complainant $10,000.00 in non-pecuniary, compensatory damages.
4. The Agency shall pay Complainant reasonable attorney fees and costs.
5. The Agency shall consider appropriate disciplinary action against the responsible management officials. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline.
6. The Agency shall provide 16 hours of Title VII training to the discriminating officials. If the discriminating officials are no longer with the Agency, the Agency shall provide documentation regarding their status. The Agency shall provide training to management officials at its Region VI offices. The Agency shall provide documentation concerning the content of the training provided. Training is not considered discipline.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation that the corrective action has been implemented including those remedies the Agency provided prior to the Commission's decisions.
POSTING ORDER (G0617)
The Agency is ordered to post at its Des Moines, Iowa facility, or if the facility is closed, at each of its operational main/central facilities in its Region VI facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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
April 5, 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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