0520180360
08-31-2018
Elly C,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elly C,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.
Request No. 0520180360
Appeal No. 0120161750
Hearing No. 570-2010-001123X
Agency No. DCAAM0904
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120161750 (March 14, 2018). 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).
Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability (pulmonary condition) and reprisal for prior EEO activity when it (1) denied her request for reasonable accommodation (telework), (2) charged her with absence without leave improperly, (3) negatively affected the terms and conditions of her employment, (4) subjected her to a hostile work environment, and (5) failed to select Complainant for an Auditor position and disclosed her confidential medical information.
Following a hearing, in a decision dated December 2, 2015, an EEOC Administrative Judge (AJ) found discrimination against Complainant based on denial of accommodation and disclosure of confidential medical information. The AJ awarded Complainant 320 hours of back pay, plus applicable interest and other benefits, such as insurance premiums, retirement contributions, and the like; $50,000.00 in nonpecuniary, compensatory damages; $2,604.42 in past pecuniary, compensatory damages; penalties and interest related to a $30,000.00 Thrift Savings Plan (TSP) withdrawal; at least eight hours of training for pertinent management and Human Resources' staff; and the posting of a Notice of a Finding of Discrimination. Further, the AJ ordered reasonable efforts by the parties to reach an agreement on the issue of attorney's fees and litigation costs.
Subsequently, on March 17, 2016, the Agency issued a final order fully implementing the AJ's decision. The Agency awarded relief consistent with the AJ's decision, including calculating 320 hours of back pay at $14,486.80, $8,000.65 in TSP retirement losses, and $6,906.00 in tax penalty. Further, the Agency stated that the two parties agreed to $15,102.53 in attorney's fees.
On April 27, 2016, Complainant filed an appeal with the EEOC, at which time she requested an extension to June 27, 2016 to file a supporting brief. Complainant cited a recent medical injury as the justification for her extension request. In a letter dated May 13, 2016, the Commission acknowledged receipt of Complainant's appeal, identified the appeal as EEOC Appeal No. 0120161750, and informed Complainant that she had 30 days from the date of filing the appeal to submit a supporting brief or statement.2 In an email dated May 23, 2016 to the Commission, Complainant requested an extension of the deadline to July 5, 2016 to submit a supporting brief, due to her injury. Complainant requested an extension of the submission deadline on two additional occasions. Ultimately, the Commission granted Complainant's requests and extended the submission deadline to October 11, 2016. On March 14, 2018, the Commission issued a decision in Appeal No. 0120161750, affirming the AJ's finding of discrimination and adding a finding of retaliation. The Commission affirmed the AJ's remedial relief and awarded an additional $2,000.00 in nonpecuniary, compensatory damages.
On March 30, 2018, Complainant filed the instant Request for Reconsideration with the Commission. In her request, Complainant stated that she filed an appellate statement eight days after the date the Commission issued its decision for Appeal No. 01201617503, and it is an "injustice" for the Commission not to consider her statement. Complainant stated that she has not received make-whole relief and requested a new appellate decision.
The record reveals that, due to a medical condition, the Commission granted Complainant four extensions of time to file her brief in support of her appeal (with a final extension deadline of October 11, 2016), and Complainant stated that she submitted a brief on March 22, 2018, which is after the Commission issued its appellate decision. The Commission is sympathetic to Complainant's situation, however, the matters addressed by Complainant in the instant request should have been raised below by the extended deadline provided rather than more than a year later. The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (as revised Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). 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. Complainant 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. 0120161750 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
Within one hundred twenty (120) calendar days of the date this decision is issued, the Agency is ORDERED to take the following remedial actions, to the extent it has not already done so:
1. Pay Complainant 320 hours of back pay, plus applicable interest and other benefits (including, but not limited to, TSP contributions, leave), consistent with the provisions of 5 C.F.R. � 550.805 which were lost as a result of the Agency's discrimination. Complainant shall cooperate in the Agency's efforts in computing interest and other benefits due and shall provide all relevant information requested by the Agency. If there is a dispute as to the calculation of interest and other benefits, the Agency shall provide Complainant with the undisputed portion. Complainant may petition for enforcement or clarification of the amount in dispute.
2. Pay Complainant $52,000 in non-pecuniary compensatory damages.
3. Pay Complainant $2,604.42 in past pecuniary losses for out-of-pocket, health care expenses.
4. Provide in-person training of at least eight hours to managers and Human Resources staff in the Agency's Mid-Atlantic Region to ensure like violations of the Rehabilitation Act do not recur. Such training shall place specific emphasis on the Agency's obligations to provide a reasonable accommodation in the workplace and provide information on the disclosure of medical information, especially as it relates to an accommodated individual.
5. Consider discipline against the responsible management officials involved in this matter. If the Agency decides to take disciplinary action, it shall identify the action taken and the management officials involved. If the Agency decides not to take disciplinary action, 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 documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its State Department Sub-Office, Rosslyn Branch 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).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 (P0610)
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 (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
August 31, 2018
__________________
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 record reveals that the Commission responded to Complainant at her address of record at the appellate and reconsideration stages of the EEO process.
3 Complainant provided an Appeal Brief dated March 22, 2018 with her Request for Reconsideration.
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