0520180335
08-24-2018
Harold M.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harold M.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520180335
Appeal No. 0120162540
Agency No. 4V1C07001
DECISION ON REQUEST FOR RECONSIDERATION
The Agency requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120162540 (February 22, 2018), concerning its adjudication of Complainant's claim for compensatory damages. 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(b).
By regulation, requests must be filed within thirty (30) calendar days after the party receives the previous decision. 29 C.F.R. � 1614.405(b). A document is timely if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b).
The Commission's previous decision included a Certificate of Mailing indicating that, for "timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed [emphasis in the original]." The Certificate of Mailing certified that the decision was mailed to the Agency on February 22, 2018. Accordingly, the Agency is presumed to have received the previous decision no later than February 27, 2018. Thirty days from that date is March 29, 2018. The Agency submitted its request electronically on April 5, 2018, which was beyond the 30-day limit set by regulation. No reason was provided for the delay.
For the foregoing reasons, the Agency's request is denied. The decision in EEOC Appeal No. 0120162540 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency is directed to comply with the Order in EEOC Appeal No. 0120162540 set forth below.
ORDER
The Agency is ORDERED to take the following remedial actions:
1. Within one hundred twenty (120) calendar days of the date this decision was issued, the Agency shall provide a copy of all documentation submitted in relation to Compliance No. 0620160444 to Complainant.
2. Within one hundred twenty (120) calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation of Complainant's entitlement to compensatory damages, The Agency is directed to inform Complainant about the legal standards associated with proving compensatory damages and give Complainant examples of the types of evidence used to support a claim for compensatory damages. Complainant will be given thirty (30) calendar days from the date he receives the Agency's notice to provide all supporting evidence of his claim for compensatory damages. Within 30 calendar days of the date the Agency receives Complainant's submission, the Agency shall issue a new final decision determining Complainant's entitlement to compensatory damages, together with appropriate appeal rights.
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.
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 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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