0520180182
04-24-2018
Gilda M.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gilda M.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Request No. 0520180182
Appeal No. 0120140791
Agency No. FS201300006
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120140791 (November 28, 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).
Complainant was a Natural Resource Planner, GS-12, at the Humboldt-Toiyabe National Forest, Spring Mountain National Recreation Area, in Las Vegas, Nevada. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age, sex (female), and reprisal when: (1) on January 28, 2013, she learned that she had not been promoted to supervisor; (2) in January 2013, she did not receive a cash award; (3) on August 24, 2012, coworkers issued slanderous and defamatory emails about her to numerous management officials; (4) on an unspecified date, she was chastised for issuing an email to management and ordered to apologize to her coworkers for the correspondence; (5) on unspecified dates, her coworkers repeatedly refused to communicate with her, avoided her, denigrated her work, dismissed her authority as Lead Planner, and told her that her work was not "rocket science"; (6) on unspecified dates, her supervisor failed to reply or take action in response to her complaints of harassment; (7) on January 23, 2013, a coworker issued an email that contained false information about her and her area of work; and (8) on unspecified dates, management discussed her EEO complaint with employees they supervise.
Our prior appellate decision concluded Complainant established discrimination with respect to claim 2 (denial of cash award). However, we affirmed the Agency's final decision that concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged as to claim 1 (promotion). The decision also declined to address the hostile work environment claim (allegations 3-8) because Complainant did not address them on appeal.
In her request for reconsideration, Complainant expresses her disagreement with the previous decision. She relates incidents occurring in 2015 and 2016, which are outside of the scope of the complaint. She raises a new issue regarding payment of student loans. She also discusses her medical issues and compensatory damages. We decline to address her compensatory damages claims at this juncture, as she must provide that information to the Agency as set forth in the Order below.
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. 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. 0120140791 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency will comply with the Order as set forth below.
ORDER
The Agency shall take the following actions within ninety (90) calendar days of the date of this decision:
1. Provide Complainant with an "extra effort" cash award for 2012, in an amount equal to the award received by the employee identified as the Engineer Tech on December 6, 2012, together with any certificates or commendations that customarily accompany such awards.
2. Within twenty (20) days of the date of this decision, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages.
3. Provide EEO training to the individual or individuals, still working for the Agency, who were responsible for making the Agency's decision in this matter.
4. The Agency shall consider taking disciplinary action against the individual or individuals, still working for the Agency, who were responsible for making the Agency's decision in this matter. If the Agency decides to take disciplinary action, it shall identify it in a compliance report the action taken. If the Agency decides not to take disciplinary action, it shall set forth in its compliance report the reason(s) for its decision not to impose discipline.
5. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
POSTING ORDER (G0617)
The Agency is ordered to post at its Humboldt-Toiyabe national Forest, Spring Mountain National Recreation Area 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).
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 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
April 24, 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.
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