0520160171
05-26-2016
Harland B.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harland B.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 0520160171
Appeal No. 0120130672
Agency No. IRS120135F
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision of the Equal Employment Opportunity Commission (EEOC or Commission) in EEOC Appeal No. 0120130672 (December 10, 2015). 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).
Complainant worked as a Contact Representative at the Accounts Management Section in Covington, Kentucky.
Complainant filed an EEO complaint alleging discrimination on the bases of race (Caucasian), sex (male), disability (restricted or limited ambulation), and reprisal. The Agency defined the issues raised in the complaint as concerning the following: (1) on September 6, 2011, Complainant was charged Absent Without Leave (AWOL); (2) on July 11, 2011, his supervisor shoved her high school ring in Complainant's face; (3) his supervisor threatened him with AWOL on a continuous basis; (4) in September 2011, his manager made the comment, "this is a woman's world" in order to intimidate him; (5) in 2010, his supervisor had a confrontation with him that almost became physical; (6) in 2010, his supervisor stormed into his cubicle and signed his Aspect phone off and said, "you'll do as I say"; and (7) his supervisor restricted his ability to participate in overtime and credit hours. Our previous decision noted that the Agency did not identify the denial of reasonable accommodation as a claim and determined that the Agency was on notice of such a claim. The decision noted that Complainant requested accommodation for additional time during his breaks and a modification to his arrival and departure times.
Complainant did not request a hearing. Our prior appellate decision affirmed Agency's decision with respect to his disparate treatment and hostile work environment claims. However, the decision found that Complainant demonstrated, by a preponderance of the evidence, that he was denied reasonable accommodation. The decision also found that a request for reasonable accommodation is a form of protected activity, and the Agency's actions in deterring Complainant from filing a formal request for reasonable accommodation constituted per se reprisal.
In its request for reconsideration, the Agency expresses its disagreement with the previous decision, arguing that neither the reasonable accommodation claim nor the per se reprisal claim were raised in the complaint and, therefore, not developed during the investigation. 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. 0120130672 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 set forth below.
ORDER
Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency is ORDERED to take the following actions:
1. Engage in an interactive process to determine an appropriate extension of time for breaks, and an appropriate adjustment for Complainant's arrival and departure times, in consultation with Complainant.
2. Calculate compensatory damages for harm caused by the reprisal. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to the Complainant for the undisputed amount within 120 (one hundred and twenty) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the
address referenced in the statement entitled "Implementation of the Commission's Decision."
3. Provide training to the Agency personnel responsible for the denial of reasonable accommodation and reprisal, particularly to the Supervisory Contact Representative and the EEO official mentioned in this decision, placing special emphasis on an employer's obligation to provide reasonable accommodation to qualified individuals with disabilities.
4. Post at the Accounts Management Section facility in Covington, Kentucky, copies of the notice discussed below.
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 all of the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Accounts Management Section facility Covington, Kentucky 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 becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/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 this decision becoming final. 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 (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 (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
May 26, 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.
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