0520100179
06-07-2010
John O'Malley, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (U.S. Marshals Service), Agency.
John O'Malley,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Request No. 0520100179
Appeal No. 0720080013
Hearing No. 510-2007-00100X
Agency No. M060040
DENIAL
Complainant timely requested reconsideration of the decision in John
O'Malley v. Department of Justice, EEOC Appeal No. 0720080013 (November
24, 2009). 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(b).
In the proceedings below, the Administrative Judge (AJ) determined
that the agency discriminated against complainant, Marshal/Criminal
Investigator, on the basis of disability when: he was informed that
he was medically disqualified and would be forced to resign or retire;
the agency delayed nine months in responding to his appeal; the agency
subsequently found him medically unqualified; and the agency removed his
badge, gun, and radio. The AJ ordered the agency to provide complainant
various relief including, of relevance here, attorney's fees, and to
provide EEO training to certain agency officials.
The agency accepted the finding of discrimination, but objected to
the amount of attorney's fees and to providing training to two of the
three agency officials named in the AJ's order. Accordingly, the agency
appealed the AJ's decision to the Commission. Complainant cross-appealed,
arguing, inter alia, that the AJ had erroneously reduced the amount of
attorney's fees to be paid, citing in particular the AJ's rejection of
the attorney's claimed hourly rate.
In its appellate decision, the Commission modified the final agency order.
The Commission rejected both the agency's argument regarding training of
agency officials with limited involvement in the discriminatory action,
and complainant's argument regarding the amount of attorney's fees.
John O'Malley v. Department of Justice (U.S. Marshal's Service), EEOC
Appeal No. 0720080013 (November 24, 2009).
On request to reopen, complainant again argues that the AJ and,
subsequently, the Commission erred in rejecting complainant's claim
for attorney's fees calculated using the rate charged by the attorney
in his home area rather than the prevailing rate in the area where
the case was litigated. A request for reconsideration is not a second
form of appeal. E.g., Lopez v. Department of Agriculture, EEOC Request
No. 0520070736 (August 20, 2007). The argument raised by complainant
on request to reopen was considered and rejected during the proceedings
below.
After reconsidering 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(b), in that complainant has demonstrated neither
that the appellate decision involved a clearly erroneous interpretation
of material fact or law, nor that the appellate decision will have
a substantial impact on the policies, practices, or operations of
the agency. It is therefore the decision of the Commission to DENY
the request. The decision in EEOC Appeal No. 0720080013 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
Within sixty (60) days of the date this decision becomes final, and to
the extent that it has not already done so, the agency is ORDERED to
take the following remedial action:
(1) The agency shall award non-pecuniary damages in the amount of
$50,000.00;
(2) The agency shall award complainant $315.00 for the loss of use of
his government vehicle;
(3) The agency shall retrieve complainants pay records for the eighteen
months prior to his placement on light duty in 2004, and calculate the
total amount of overtime worked for that period. The agency shall award
complainant that amount as lost overtime;
(4) The agency shall conduct training for the Employee Medical Programs
Manager, the U.S. Marshal for the Southern District of Florida,
and the Chief Deputy U.S. Marshal. The training shall detail their
responsibilities and required sensitivity under the Rehabilitation
Act and EEOC regulations with respect to eliminating discrimination
in the Federal workplace, and specifically with respect to preventing
discrimination against individuals with disabilities and individuals
who are perceived as having disabilities;
(5) The agency shall not utilize the same reviewing physician again
for future medical examinations of, or review of medical records, for
complainant;
(6) The agency shall provide training as described in this paragraph
for the reviewing physician. Although the reviewing physician is not an
employee of the agency, the agency shall require that such training be
mandatory for anyone contracted by the U.S. marshal's Service, Southern
District of Florida to conduct these types of medical evaluations that
were at issue in this case;
(7) Complainant shall be returned to his prior position as a Deputy
U.S. Marshal on full duty in the Warrants Division;
(8) The agency shall reimburse complainant for $71,750.96 in attorney's
fees;
(9) The agency shall restore 100 hours of sick leave to complainant's
leave balance;
(10) The agency shall provide complainant with four training courses
relevant to his position as a Deputy U.S. Marshal in the Warrants
Division. These shall be provided within the next eighteen months; and
(11) The agency shall provide complainant with priority consideration
for the next four special assignments within his Division.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Marshal's Service, Miami,
Florida facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (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 ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (P0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 7, 2010
Date
2
0520100179
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100179