Cynthia Kelly, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 30, 1999
05981118 (E.E.O.C. Sep. 30, 1999)

05981118

09-30-1999

Cynthia Kelly, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Cynthia Kelly, )

Appellant, )

) Request No. 05981118

v. ) Appeal No. 01951729

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

On September 1, 1998, the Department of Veterans Affairs (hereinafter

referred to as the agency) initiated a request to the Equal Employment

Opportunity Commission (the Commission) to reconsider the decision

in Cynthia Kelly v. Togo D. West, Jr., Acting Secretary, Department

of Veterans Affairs, EEOC Appeal No. 01951729 (July 29, 1998).<1>

Cynthia Kelly (hereinafter referred to as appellant) initiated a timely

cross-request for reconsideration on September 8, 1998. EEOC regulations

provide that the Commissioners may, in their discretion, reconsider

any previous Commission decision. 29 C.F.R. �1614.407(a). The party

requesting reconsideration must submit written argument or evidence which

tends to establish one or more of the following three criteria: new and

material evidence is available that was not readily available when the

previous decision was issued, 29 C.F.R. �1614.407(c)(1); the previous

decision involved an erroneous interpretation of law, regulation,

or material fact, or a misapplication of established policy, 29

C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as

to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

After a review of the agency's request for reconsideration, appellant's

cross-request, the previous decision, and the entire record, the

Commission finds that neither the agency's nor appellant's request

meets the criteria in 29 C.F.R. �1614.407(c). Therefore, it is the

decision of the Commission to deny the agency's request and appellant's

cross-request. The decision in EEOC Appeal No. 01951729 (July 29, 1998)

remains the Commission's final decision. The agency shall comply with

the provisions of the Order, as set forth below. There is no further

right of administrative appeal on a decision of the Commission on this

Request for Reconsideration.

ORDER

The agency is ORDERED to take the following remedial actions:

1. The agency shall afford EEO sensitivity training to RO1 and RO2.

2. The agency shall post the attached Notice in accordance with the

directive below.

3. The agency shall grant appellant a transfer to another agency

facility. The agency shall provide appellant with a list of vacant

positions for which she is qualified and that are comparable to the grade

level of her current position, and permit appellant to select the position

and facility into which she seeks to transfer. If such a transfer is not

possible, the agency shall transfer RO2. This transfer should be effected

as soon as possible, but no later than six (6) months from the date this

decision becomes final. At no time will appellant be assigned to work

directly or indirectly under RO2's supervision or near his working area.

Within thirty (30) days of the date on which this decision becomes final,

the agency shall tender to appellant pecuniary compensatory damages in

the amount of $42.00.

Within thirty (30) days of the date on which this decision becomes final,

the agency shall tender to appellant nonpecuniary compensatory damages

in the amount of $100,000.00.

Within sixty (60) days of the date on which this decision becomes final,

the agency shall determine, with appellant's cooperation, the appropriate

amount of backpay, leave, and other benefits due appellant, pursuant

to 29 C.F.R. �1614.501. Specifically, the agency shall: (a) restore to

appellant the annual and sick leave taken from April 22, 1992, to May 3,

1993; and (b) correct appellant's leave records to reflect the restoration

of leave. If there is a dispute regarding the exact amount of backpay

and/or benefits, the agency shall issue a check to the appellant for

the undisputed amount within sixty (60) calendar days of the date the

agency determines the amount it believes to be due. The appellant may

petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

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 evidence that the corrective action

has been taken.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Veterans Administration Medical

Center, Loma Linda, California, facility copies of the attached notice.

Copies of the notice, after being signed by the agency's duly authorized

representative, shall be posted by the agency within thirty (30) calendar

days of the date this decision becomes final, and shall remain posted

for sixty (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 ten (10) calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H1092)

If appellant 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 (K0595)

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 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (P0993)

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.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

09-30-99

Date Frances M. Hart

Executive Officer

Executive Secretariat1The record does

not contain a postal return receipt

or other evidence showing when

the agency received the appellate

decision. Accordingly, the request

for reconsideration is deemed to be

timely filed.