Danielle H.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Mar 9, 2018

0520180111 (E.E.O.C. Mar. 9, 2018)

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

Danielle H.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Health Agency),
Agency.

Request No. 0520180111
Appeal No. 0120152515
Agency No. DHANCR140009

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. 0120152515 (October 19, 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).

The record indicates that on January 18, 2014, Complainant filed a formal EEO complaint
claiming she was discriminated against based on race (African-American) when:

(1) In 2012, she did not receive her Quality Step Increase (QSI), that was approved by her
prior manager; and

(2) In December 2013, she was denied a promotion to the GS-7 after the reclassification of
her position.

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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On July 13, 2015, the Agency issued its final decision finding no discrimination. Upon
Complainant’s appeal, the Commission reversed the Agency’s final decision and found race
discrimination for both claims. In its request, the Agency reiterates its arguments previously
made.

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. 0120152515 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 restated from our prior
decision, as set forth herein.

ORDER
The Agency is ORDERED to take the following remedial action within 120 days of the date this
decision is issued (unless otherwise indicated):

1. The Agency shall retroactively provide Complainant the Quality Step Increase (QSI) that
was denied to Complainant in March 2012, along with an award of all resulting back pay,
with interest.

2. The Agency shall retroactively provide Complainant the GS-7 promotion, along with an
award of all resulting back pay, with interest. The promotion shall be retroactive to the
date the Health Systems Administrator provided the Assistant Division Officer (ADO2)
with the paperwork to effectuate the promotion.

3. The Agency shall consider Complainant's claim for compensatory damages, incurred as a
result of the Agency's discriminatory actions. Within 15 days of the date this decision is
issued, the Agency shall notify Complainant of her right to present evidence to the
Agency regarding her claim for compensatory damages. Complainant shall provide
objective evidence that the damages in question were a result of the Agency's
discrimination and of the amount of the claimed damages. Within 30 days of the
submission of such evidence, the Agency shall issue a final agency decision on this issue,
with appropriate appeal rights to the Commission.

4. The Agency shall provide training to the relevant management officials (ADO2 and the
Commander) regarding their responsibilities with respect to eliminating discrimination in
the federal workplace. The training must emphasize the Agency's obligations under Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.

5. The Agency shall consider taking appropriate disciplinary action against the relevant
management officials (ADO2 and the Commander). The Commission does not consider
training to be disciplinary action. The Agency shall report its decision to the compliance
officer. 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 reason(s)
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for its decision not to impose discipline. If the Assistant Director has left the Agency's
employ, the Agency shall furnish documentation of their departure date(s).

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 verifying that the corrective action has been implemented.

POSTING ORDER (G0617)
The Agency is ordered to post at its the Walter Reed National Military Medical 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)), 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
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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

March 9, 2018
Date