0520180499
09-27-2018
Clay W.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clay W.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Request No. 0520180499
Appeal No. 0120161031
Hearing No. 541-2013-00039X
Agency No. ARCARSON12MAY01904
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120161031 (June 21, 2018). 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 EEOC Appeal No. 0120161031, the Commission reviewed the remedies ordered by the Equal Employment Opportunity Commission Administrative Judge's (AJ) following the AJ's decision finding in favor of Complainant. The Commission found that found that the AJ erred in limiting the backpay award, and also that Complainant was also entitled to interest on the award and an additional lump sum payment to offset tax consequences. However, the decision concluded that Complainant was not entitled to front pay as asserted or reinstatement to a permanent position rather than the two-term position awarded by the AJ. Finally, the decision denied Complainant's claims that he was entitled to interest for late payments, pre-complaint fees for his Attorney, and fees for an expert witness for which Complainant failed to provide documentation. As such, the decision in EEOC Appeal No. 0120161031 modified the orders issued by the AJ and remanded the matter for further processing.
Complainant filed the instant request for reconsideration, again requesting front pay and/or reinstatement to a permanent position. The Commission notes that front pay is an appropriate remedy where reinstatement is not possible. Complainant has provided no evidence or circumstances to establish that his reinstatement is not possible. Furthermore, Complainant argued that he should have been reinstated to a permanent position rather than a two-year term position. However, the previous decision noted that Complainant was a term employee at the time he alleged discrimination. As such, the Agency was ordered to reinstate him to his prior position. Accordingly, we discern no basis to disturb the Commission's previous decision.
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. 0120161031 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
To the extent that it has not already done so, the Agency is ORDERED to undertake the following remedial action:
1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall offer to reinstate Complainant to a GS-11 Social Services Assistance Coordinator position at the Ft. Carson, Colorado Army Community Services, Soldier Family Assistance Center (or some other mutually agreeable position/location). Complainant shall be given a minimum of thirty (30) calendar days from receipt of the offer to accept or decline the offer. Failure to accept the offer within the time period set by the Agency will be considered rejection of the offer, unless Complainant can show that circumstances beyond his control prevented a response within the time limit. Complainant's term position will be for a two-year term, effective the date Complainant accepts the position. After the two-year term expires, the Agency shall evaluate (in the same nondiscriminatory manner it evaluates all term employees) whether to extend Complainant's position for another term and whether Complainant's position should be made permanent.
2. Within sixty (60) calendar days of the date this decision is issued, the Agency shall determine the appropriate amount of back pay, and other benefits due Complainant pursuant to 29 C.F.R. � 1614.501. The Agency's determination shall be based on the fact that, absent discrimination, Complainant would have remained employed as a Social Services Assistance Coordinator and subsequently would have received all step increases and all career ladder promotions to which a fully successful employee was entitled. If Complainant declines reinstatement, the back pay period shall end on the date he declines the offer. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the Agency. 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 sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount it believes to be due. The petition for enforcement or clarification must be filed with the Compliance Officer at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. After the relevant back pay decisions have been made, the Agency shall request that Complainant submit his claim for compensation for all additional federal and state income tax liability that he has incurred or will incur. The Agency shall afford Complainant a minimum of sixty (60) calendar days to submit his claim and supporting documents. The burden of proof to establish the amount of additional tax liability, if any, is on the Complainant. The calculation of additional tax liability must be based on the taxes Complainant would have paid had he received the back pay in the form of regular salary during the back pay period, versus the additional taxes he paid due to receiving the back pay lump sum award. Thereafter, the Agency shall issue a final decision on this matter and any amount of proven additional tax liability within one hundred and twenty (120) calendar days of the date this decision is issued in accordance with 29 C.F.R. � 1614.110(b).
4. Within thirty (30) calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the statement entitled "Posting Order."
5. Within one hundred twenty (120) calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive EEO training to the management officials responsible for the delay in investigating Complainant's complaint, with a particular emphasis on EEO complaint processing.
6. Within sixty (60) calendar days of the date this decision is issued, the Agency shall consider discipline against the management officials responsible for the delay in investigating Complainant's complaint.
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). Further, the report must include evidence that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Ft. Carson, Colorado Army Community Services, Soldier Family Assistance Center 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)), he 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 (K0618)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
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 27, 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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