0520070873
09-27-2007
Deborah A. de Armas, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Deborah A. de Armas,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Request No. 0520070873
Appeal No. 0720060085
Hearing No. 380-2005-00098X
Agency No. TD042281
DENIAL
The agency timely requested reconsideration of the decision in Deborah
A. de Armas v. Department of the Treasury, EEOC Appeal No. 0720060085
(July 26, 2007). 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(b).
Complainant alleged that she was discriminated against on the basis of
reprisal for prior protected EEO activity and was subjected to a hostile
work environment between October 1, 2003, and April 2004. An EEOC
Administrative Judge (AJ) found that the agency's actions did not rise
to the level of a hostile work environment but found that the agency
had mixed motives, both lawful and unlawful, when the RMO subjected
complainant to heightened scrutiny due to her prior EEO activity.
Based on the mixed motive finding of reprisal the AJ ordered the agency
to pay complainant all cost to which she was entitled; take no further
retaliatory action, conduct EEO training for managers, supervisor,
and employees at its Everett and Bellevue facilities in Washington, and
post a copy of the notice advising that discrimination had been found.
The agency rejected the AJ's finding and appealed the decision to
the Commission. The Commission reversed the agency's final order of
no discrimination and remanded the case to the agency to take remedial
action.
In the request for reconsideration, the agency argues that the Commissions
decision affirming a finding of reprisal was based on an erroneous
interpretation of law. Specifically, the agency argues that all but
one of the actions that complainant complained of were timed barred
as complainant failed to timely contact an EEO counselor. Further,
the agency contends that the one alleged action that was timely raised
failed to state a claim because it was made outside of complainant's
presence by the RMO without any intent that the statements would be
communicated to complainant.
After reconsidering 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(b). The Commission finds that the agency failed to show
that the appellate decision involved a clearly erroneous interpretation
of material fact or law; and failed to show that the appellate decision
will have a substantial impact on the policies, practices, or operations
of the agency. Therefore, it is the decision of the Commission to deny
the request. Further, the Commission finds that the arguments raised in
the request for reconsideration were previously raised and were fully
addressed in the appellate decision. The Commission finds that no new
information or arguments have been presented. Accordingly, the decision
in EEOC Appeal No. 0720060085 remains the Commission's final 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 set forth below.
ORDER
The agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, complainant shall submit to the agency a statement of costs to
which she is entitled, including copying and travel. Within ninety (90)
calendar days of the date this decision becomes final, the agency shall
pay complainant all costs to which she may be entitled under Federal
law in connection with this complaint. 29 C.F.R. � 1614.501.
2. The agency should provide training to the RMO regarding his
obligations not to restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings under the Federal equal
employment opportunity laws. The Commission does not consider training
to be a disciplinary action.
3. The agency shall consider taking disciplinary action against
the RMO. The agency shall report its decision. 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) 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 documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Everett, Washington 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (P0900)
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 within ninety (90) calendar days from the date that you receive
this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____9/27/07______________
Date
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0520070873
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070873