Complainant,v.Arne Duncan, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Feb 25, 2015

0520150011 (E.E.O.C. Feb. 25, 2015)

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

,
Complainant,

v.

Arne Duncan,
Secretary,
Department of Education,
Agency.

Request No. 0520150011

Appeal No. 0720130002

Hearing No. 570-2010-0029X

Agency No. ED-2009-26-00

DISMISSAL OF REQUEST FOR RECONSIDERATION
Complainant requested reconsideration of the decision in Complainant v. Department of
Education

, EEOC Appeal No. 0720130002 (August 27, 2014). EEOC Regulation 29 C.F.R.
§1614.405(c) provides that a request to reconsider must be filed to the Commission within 30
calendar days after complainant receives the decision on appeal. It is noted that the appellate
decision included a Certificate of Mailing indicating that for timeliness purposes, the
Commission will presume that the decision was received within five calendar days of mailing,
which was September 1, 2014. The request was postmarked October 3, 2014, which was
beyond the 30-day time limit set by the regulations. The record reveals that the decision on
appeal explicitly informed Complainant of the time limits on his right to request
reconsideration. On request, Complainant does not submit any adequate justification to invoke
waiver or equitable tolling for filing the request. Accordingly, the request is DISMISSED as
untimely and the decision in EEOC Appeal No. 0720130002 remains the Commission’s
decision. There is no further right of administrative appeal on the decision of the Commission
on this request.

ORDER
Regarding claim (2), within sixty (60) calendar days of this decision becoming final, the
Agency is ordered to take the following remedial action:

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1. The Agency shall review its pre-employment process and shall revise such pre-employment
forms and procedures as necessary to ensure that the inquiries comply with the Rehabilitation
Act of 1973, as delineated in the EEOC's implementing regulations at 29 C.F.R. § 1614.203,
including the restrictions on pre-employment inquiries specified at 29 C.F.R. § 1614.203(e).

(a) The Agency shall instruct USAJOBs to include the following assurances on any
written questionnaire which solicits disability-related information for purposes of
affirmative employment for agency job vacancies: [1] the information requested is
used solely in connection with its affirmative action obligations or efforts; [2] the
information is requested on a voluntary basis; [3] the information will be kept
confidential in accordance with the Rehabilitation Act; [4] refusal to provide the
information will not subject the applicant to any adverse treatment; and [5] the
information will be used only in accordance with the Rehabilitation Act.

(b) The Agency shall post on its own job application system, EDHIRES, the
aforementioned instructions in connection with any applications requesting that
candidates self-identify disabilities.

2. The Agency shall provide training to Department of Education officials who are responsible
for personnel decisions, specifically those conducting pre-employment inquiries and
interviews, and other aspects of the hiring process, concerning their responsibilities with
respect to eliminating discrimination in the federal workplace. This training shall include the
Human Resources Office. The training must place a special emphasis on the Agency's
obligations under the aforementioned law and implementing regulations with respect to such
pre-employment inquiries.

3. The Agency shall pay Complainant $5,000 in non-pecuniary compensatory damages.

The Agency is directed to submit a report of compliance, as provided in the statement below
entitled “Implementation of the Commission’s Decision.”

POSTING ORDER

(G0914)
The Agency is ordered to post at its EEO Service office in Washington D.C. 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 becomes final, 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 at the address cited in the paragraph entitled
"Implementation of the Commission's Decision," within 10 calendar days of the expiration of
the posting period.

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ATTORNEY'S FEES

(H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he/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 this decision becoming final. 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

(K0610)
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 submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. 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

(Q0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 25, 2015