0520150080
05-06-2016
Damaris M.,1 Complainant, v. Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Damaris M.,1
Complainant,
v.
Joshua Gotbaum,
Director,
Pension Benefit Guaranty Corporation,
Agency.
Request No. 0520150080
Appeal No. 0720130001
Hearing No. 570-2011-00537X
Agency No. FC-019-2010
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0720130001 (October 9, 2014). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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).
During the period at issue, Complainant worked as a GS-12 Accountant at the Agency's Washington D.C. facility. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race and in reprisal for prior EEO activity.
Following an investigation of her eleven claims, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for Summary Judgment and Complainant filed a Response to the Agency's Motion for Summary Judgment. On May 8, 2012, the AJ granted the Agency's motion for summary judgment as to eight claims and a portion of one claim. However, the AJ advised the parties that there were issues of material fact and questions of credibility as to three claims that required a hearing.
On June 6 - 7, and 19, 2012, the AJ conducted a hearing on whether Complainant was subjected to discrimination and/or hostile work environment based on race, color, and in reprisal for prior EEO activity based on the following claims when2:
1. on April 14, 2010, Complainant's supervisor denied Complainant's request for flexiplace submitted three weeks earlier, stating she would be placed on an indefinite waiting list because the department exceeded the 50% requirement for flexiplace. Two Caucasian employees were placed on permanent flexiplace "after [Complainant's] request;"
2. on April 16, 2010, Complainant requested reconsideration of her flexiplace request during a meeting with her supervisor and "Labor Relations and Flexiplace Coordinator personnel." On May 4, 2010, Complainant learned that her supervisor would not grant her request; and
3. on April 27, 2010, Complainant's supervisor denied "emergency flexiplace" she requested for April 28, 2010, because her vehicle was in the repair shop and a second vehicle would not start, although a coworker was permitted to work from home an entire week to make repairs to her home caused by the winter storm and take care of an ex-husband who was very ill.
On August 14, 2012, the AJ issued an Order Entering Judgment. The AJ noted that as a result of the Bench Decision and the Decision Without a Hearing dated August 6, 2012, judgment was entered partially in favor of the Agency and partially in favor of Complainant. The Agency subsequently issued a final order dated September 26, 2012, partially implementing the AJ's August 14, 2012 Order. The Agency stated that it would fully implement that portion of the Order granting the Agency's Motion for Summary judgment as to eight claims and portion of one claim. In addition, the Agency stated it would fully implement that portion of the Order finding that Complainant failed to establish that the Agency's actions were a pretext for discrimination with regard to hearing claims 1 and 2. However, the Agency stated it would not implement that portion of the Order with regard to hearing claim 3 wherein the AJ sanctioned the Agency with a finding that the Agency discriminated against Complainant on the basis of race when it denied her April 27, 2010 request for emergency flexi-place for use on April 28, 2010.
In the prior decision, the Commission affirmed the AJ's Order imposing sanctions against the Agency for obtaining a draft partial transcript by issuing a default judgment in favor of Complainant on hearing claim 3. Specifically, the Commission found that the AJ properly determined that the Agency violated "the spirit of the [C]ommission's order" that transcripts be provided to both parties to afford them an "equal footing." The Commission determined the Agency's actions in securing a draft transcript after the first two days of the hearing and not providing a copy to Complainant to constitute deceptive behavior which created the inference that the Agency was trying to obtain an unfair tactical advantage during the hearing.
With respect to the relief granted to Complainant, the Commission determined an award of $76 in pecuniary, compensatory damages and $1,000 for non-pecuniary, compensatory damages by the AJ appropriate. The Commission also ordered additional relief for Complainant than that ordered by the AJ. Specifically, the Commission ordered the Agency to provide training to a named Agency official with regard to the prohibitions against discrimination under Title VII, and consider taking disciplinary action against the named Agency official for discriminated against Complainant and any other Agency employees responsible for the discrimination perpetrated against Complainant.
In its Request for Reconsideration, the Agency argues that the Commission's decision, affirming the AJ's order issuing a default judgment on hearing claim 3 at the hearing "as a sanction against the Agency for obtaining a draft partial transcript, involved clearly erroneous interpretations of law and material facts." The Agency's arguments on its request for reconsideration encompass a variety of matters, including the assertion that the additional remedies the Commission "issued as a result of the default judgment sanctions are also based on a misrepresentation of law and material facts."
Further, the Agency argues that the Commission "incorrectly found that there was a significant prejudicial effect to Complainant sufficient to affirm the default judgment sanction based on speculation that the draft partial transcript 'could have been used' to afford the Agency an unfair advantage in preparing for the examination of key witnesses [emphasis in its original]." The Agency states "because the newly imposed notice requirements and the two additional categories of relief included by OFO are excessive, unrelated to the Agency's conduct which resulted in the sanction and do not serve to address the Agency's conduct that the AJ intended to prevent in the future, the Commission should reverse OFO's decision to grant this relief."
Moreover, the Agency argues that the Commission's decision to affirm the AJ's award of non-pecuniary compensatory damages in the amount of $1,000 is based on an erroneous interpretation of the law and the material facts at hand because Complainant "put forth no specific testimony regarding the stress or difficulty sleeping she suffered as a result of allegedly being denied flexiplace on April 28, 2010."
However, the Agency's arguments in support of its request for reconsideration concern matters that clearly have been raised, or certainly could have been raised, during the original appeal. In this regard, 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. 0720130001 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ORDERED to take action within sixty (60) days of the date this decision becomes final, as stated in EEOC Appeal No. 0720130001. Specifically, the Agency is to take the following action:
1. Within 60 days of the date this decision becomes final, pay Complainant $1,000 in non-pecuniary, compensatory damages.
2. Within 60 days of the date this decision becomes final, pay Complainant $76 in pecuniary, compensatory damages.
3. Within 180 days of the date this decision becomes final, provide training to Person A with regard to the prohibitions against discrimination under Title VII. This training shall be conducted by qualified EEO personnel.
4. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against Person A for discriminating against Complainant and any other Agency employees responsible for the discrimination perpetrated against Complainant. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose 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 verifying the corrective action has been implemented.
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 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 Complainants 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 6, 2016
__________________
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.
2 The AJ renumbered the remaining three claims that were the subject of the hearing. While the three issues were pending a hearing, the AJ allowed Complainant to add color as a basis.
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