0520160482
12-13-2016
Iliana S.,1 Complainant, v. Jenny R. Yang,2 Chair, Equal Employment Opportunity Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Iliana S.,1
Complainant,
v.
Jenny R. Yang,2
Chair,
Equal Employment Opportunity Commission,
Agency.
Request No. 0520160482
Appeal No. 0120123242
Agency No. 2011-00016
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120123242 (July 11, 2016). 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). 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.
ISSUE PRESENTED
The issue presented is whether the Commission, in its appellate decision, clearly erred in finding that Complainant did not establish that the Agency subjected her to disparate treatment on the bases of disability or reprisal when it allegedly interfered with her work productivity.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency subjected her to disparate treatment on the bases of disability and reprisal for prior protected EEO activity (leave taken as a reasonable accommodation) when: (1) from July 16, 2010 to April 1, 2011, management interfered with her work productivity by not reviewing and signing five of her "cause" cases in a timely manner; and (2) on November 15, 2010, management provided her with a "Fully Successful" rating for her fiscal year (FY) 2010 performance evaluation. Subsequently, the Agency issued a final decision finding no discrimination and Complainant filed an appeal with the Commission.
On July 11, 2016, the Commission issued an appellate decision in EEOC Appeal No. 0120123242, which modified the Agency's final decision. Specifically, the Commission affirmed the Agency's final decision regarding claim 1 but reversed the Agency's final decision regarding claim 2.
Regarding claim 1 (alleged interference with her work productivity), the Commission found that Complainant did not establish that the Agency subjected her to disparate treatment on the bases of disability or reprisal. With respect to cases 1, 2, and 3, the Area Director returned them to Complainant for multiple revisions and the District Director (who reviewed them after Complainant expressed concern that the Area Director was not reviewing them in a timely manner) ultimately did not agree with the "cause" finding. With respect to case 4, the Area Director forwarded it to the District Director, but the District Director returned it without signing it and the Area Director ultimately signed it. With respect to case 5, the Area Director returned it to Complainant for additional raw data. The Commission analyzed the claim under the McDonnell Douglas3 framework for circumstantial evidence. Initially, the Commission assumed, arguendo, that Complainant established a prima facie case on the alleged bases. Next, the Commission found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Commission cited the following affidavit testimony from the Area Director and the District Director: (a) the Area Director stated that factors such as the need for corrections or modifications, discussion, attorney review, or review by the District Director may delay the review of a case; (b) the Area Director and the District Director stated that the evidence Complainant submitted for several cases did not support a "cause" finding; and (c) the District Director stated that he returned a case to the Area Office because he believed that there were problems with the case. Finally, the Commission found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons were pretextual. Specifically, the Commission found that Complainant did not show that discriminatory animus motivated the actions of the Area Director or the District Director with respect to her "cause" cases and that Complainant offered no evidence to support her assertion that she was the only Investigator required to make multiple revisions to documents.
Regarding claim 2 (FY 2010 performance evaluation), the Commission found that Complainant established that the Agency subjected her to disparate treatment on the basis of reprisal and denied her a reasonable accommodation for her disability. As to the basis of reprisal, the Commission found that the following affidavit testimony from the Area Director and the District Director constituted direct evidence of retaliatory motivation: (a) the Area Director stated that she told the EEO Counselor that Complainant's absences had a negative impact on the office; and (b) the District Director stated that Complainant's work productivity had been impacted by her extensive absences. As to the basis of disability, the Commission found that the Agency did not provide Complainant with an effective accommodation because it penalized her for missing work during her leave which was taken as a reasonable accommodation.
COMPLAINANT'S REQUEST FOR RECONSIDERATION
In her request for reconsideration, Complainant states that the Commission should reconsider its finding of no discrimination in claim 1. Specifically, Complainant argues that the Commission focused on the actions of the Area Director with respect to her "cause" cases instead of the discriminatory basis for those actions. In addition, Complainant argues that the Area Director treated her differently than a coworker (CW); CW had a companion case to cases 1, 2, and 3, but the Area Director signed off on CW's case in a timely manner. Moreover, Complainant argues that it was "puzzling" that the Commission found discrimination in claim 2 but not in claim 1.
In opposition to the request, the Agency states that Complainant's request does not show that the appellate decision involved a clearly erroneous interpretation of material fact or law.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Here, Complainant's request does not show that the Commission, in its appellate decision, clearly erred in finding no disparate treatment in claim 1. Specifically, we find that the Commission properly analyzed the claim under the McDonnell Douglas framework for circumstantial evidence. In addition, we find that Complainant's request does not show that the Commission clearly erred in concluding that she did not prove pretext. Although Complainant argues that the Area Director treated her differently than CW, she did not show that CW's case was similar to cases 1, 2, and 3 in scope and complexity. We note that the record contains the Area Director's affidavit testimony that Complainant's cases and CW's case involved the same employer but not the same allegations, bases, issues, evidence, or outcomes. Finally, although Complainant questions how the Commission could have found discrimination in claim 2 but not in claim 1, we note that they were two separate claims entailing different analyses.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VII.A (Aug. 5, 2015). 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.
CONCLUSION
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. 0120123242 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued:
1. The Agency shall change Complainant's rating of record from "Fully Successful" to "Outstanding" for the rating period October 1, 2009 to September 30, 2010 (FY 2010).
2. The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of her discriminatory evaluation and shall afford Complainant an opportunity to establish a causal relationship between the evaluation and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages she may be entitled to as a result of the discrimination, and shall provide all relevant information requested by the Agency. The Agency shall issue a new Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.
3. The Agency shall provide EEO training to the responsible management officials regarding their responsibilities under EEO laws. The training shall address these employees' responsibilities with respect to Section 501 of the Rehabilitation Act of 1973, reasonable accommodation, and reprisal.
4. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
POSTING ORDER (G1016)
The Agency is ordered to post at its Louisville Area Office 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 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 (H1016)
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 the date this decision was issued. 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 (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
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:
______________________________ Bernadette B. Wilson's signature
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
__12/13/16________________
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 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the adjudicatory authority. The Commission's adjudicatory function is housed in an office that is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term "Commission" or "EEOC" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to the respondent party to this action. The Chair has recused herself from participation in this decision.
3 McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973).
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