Jazmine F.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0520180517 (E.E.O.C. Nov. 7, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jazmine F.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense,
Agency.

Request No. 0520180517

Appeal No. 0120162132

Hearing No. 570-2015-01003X

Agency No. 2012FMD030

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120162132 (June 22, 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 was employed as a Program Analyst, GS-0343-14, at the Financial Management
Directorate (FMD) facility in Washington, D.C. Complainant filed an EEO complaint alleging
she was subjected to reprisal when, on April 27, 2012, the Office Director advised her temporary
Detail Supervisor that Complainant had previously filed an EEO complaint. Following its
investigation, and Complainant’s withdrawal of her hearing request, the Agency issued a final
decision concluding no unlawful retaliation had been established.

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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In EEOC Appeal No. 0120162132, we reversed the Agency’s final decision and concluded that
the weight of the evidence established that unlawful retaliation had occurred. The Agency was
ordered to adjudicate Complainant’s claim for compensatory damages, and was required to
provide training to the responsible management official, as well as consider disciplinary action.

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. 0120162132 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
The Agency is ordered to take the following remedial action within ninety (90) calendar days of
the date this decision is issued:
1. The Agency shall conduct a supplemental investigation into Complainant’s entitlement to
compensatory damages, and will afford her an opportunity to establish a causal
relationship between the Agency’s retaliation and her pecuniary and non-pecuniary loses,
if any. Complainant will cooperate in the Agency’s efforts to compute the amount of
compensatory damages, and will provide relevant information requested by the Agency.
The Agency will issue a final decision on the amount of compensatory damages. 29
C.F.R. § 1614.110. The final decision will contain appeal rights to the Commission.

2. The Agency shall provide a minimum of eight hours of in-person training to the Director
regarding her responsibilities under Title VII, with special emphasis on the duty of
managers to avoid retaliating against employees.

3. The Agency shall consider discipline against the Director. 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).

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.

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POSTING ORDER (G0617)
The Agency is ordered to post at its Financial Management Directorate (FMD) facility in
Washington, D.C. 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).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), 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 (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).
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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

November 7, 2018
Date