Jed T.,1 Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Sep 21, 2016

0520160391 (E.E.O.C. Sep. 21, 2016)

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

Jed T.,1
Complainant,

v.

Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services,
Agency.

Request No. 0520160391
Appeal No. 0120140424
Hearing No. 540-2011-00230X
Agency No. HHSHIS05172010

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120140424 (May 24, 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).

In the underlying complaint, Complainant alleged that the Agency discriminated against him on
the bases of race (White), color (white), sex (male), national origin (Hispanic), age (over 40
years old), and in reprisal for prior EEO activity when: (1) in July and August 2010, he made
management aware of his problem with two employees (C1 and C2) but they did not take any
action concerning it. These problems included: (a) beginning on April 26, 2010, C2 made
negative comments about Complainant by indicating he called her names; (b) beginning on
April 26, 2010, C2 portrayed hatred toward him in all interactions with him as her supervisor;
(c) during the same time-frame C1 and C2 created a negative environment for providing access
to health care at the facility, including lying about Complainant by saying such things as he did
not answer phone calls and pages; and (2) on October 25, 2010, he was demoted from Acting
Staff Director to Staff Physician.

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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The record shows that summary judgment was granted to the Agency with respect to Claim 1,
but granted to Complainant on the basis of reprisal with respect to Claim 2. Following the
summary judgment decision, a hearing took place on the issue of damages. Following the
hearing, the Administrative Judge (AJ) ordered the Agency to: (1) pay Complainant non-
pecuniary compensatory damages in the amount of $4,800.00; (2) pay Complainant his
incurred costs in the amount of $3,703.24; (3) consider issuing disciplinary action against the
responsible management official (RMO); (4) provide training to RMO on Title VII,
particularly with respect to the prohibition against retaliation; and (5) post a notice of
retaliation at the facility where the retaliation took place.

The record also shows that the Agency failed to timely appeal the AJ’s decision and
consequently the decision was considered automatically adopted by the Agency. Our previous
decision noted that in his appeal, Complainant did not challenge the AJ's findings or award of
damages. Instead, Complainant previously contended that the Agency failed to issue a final
order. Our previous decision affirmed the AJ’s decision and noted that the failure of the Agency
to issue a timely final order did not affect the outcome of the decision since according to our
regulations such failure automatically amounts to an adoption of the AJ’s decision. In his
reconsideration request, Complainant raises arguments previously made and also raises new but
vague arguments with respect to merits of the AJ’s decision.

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. 0120140424 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request.

ORDER

Within 30 days from the date this decision becomes final, the Agency shall take the following
actions to the extent it has not already done so:

1. The Agency shall pay Complainant $4,800.00 in non-pecuniary compensatory damages;
2. The Agency shall pay Complainant $3,703.24 in costs;
3. The Agency shall provide a minimum of eight (8) hours of EEO training for RMO.
The training shall focus on unlawful retaliation and address RMO’s responsibilities with
respect to eliminating discrimination in the workplace and all other supervisory and
managerial responsibilities under equal employment opportunity law.
4. The Agency shall consider taking disciplinary action against RMO. The Commission
does not consider training to constitute disciplinary action. The Agency shall notify the
Commission's Compliance Officer of the action taken. If the Agency decides not to
take disciplinary action it shall inform the Commission's compliance Officer of the
reason(s) for its decision not to impose discipline. If RMO is no longer employed by
the Agency, the Agency shall provide proof of the date of separation.
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5. The Agency shall post a notice in accordance with the paragraph below.
6. The Agency is further directed to submit a report of compliance, as provided in
statement entitle “Implementation of the Commission's Decision.”

POSTING ORDER (G0914)

The Agency is ordered to post at its Fort Yuma Service Unit of Indian Health Service located
in Winterhaven, California 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.

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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. 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
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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:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 21, 2016
Date