Madelaine G.,1 Complainant,v.Rex W. Tillerson, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0520170120 (E.E.O.C. Nov. 21, 2018)

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

Madelaine G.,1
Complainant,

v.

Rex W. Tillerson,
Secretary,
Department of State,
Agency.

Request No. 0520170120

Appeal No. 0120141877

Agency No. DOS-F-0245-13

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120141877
(October 25, 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 she was discriminated against on the basis of
her disability (arthritis) when, on August 22, 2013, the Department of State denied her medical
clearance and her Return to Post Authorization was not reinstated, preventing her from returning
to work at U.S. Embassy Kabul, Afghanistan. 2

On March 10, 2014, after the acceptance and investigation of Complainant’s EEO complaint, the
Department of State (DOS or Agency) issued its final decision in favor of Complainant’s claims.

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 The DOS denied Complainant a Class 2 Medical Clearance to work in Kabul, Afghanistan
because of the perceived risk of harm she posed to herself due to her recent use of the prescribed
drug Leflunomide.
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Complainant appealed the Agency’s decision on the issue of damages only, because the final
decision failed to address back pay, compensatory damages, and attorney’s fees. On October 25,
2016, in response to Complainant’s appeal, the Agency’s finding of liability was affirmed3 but the
final decision was modified with respect to damages and remanded to the Agency for further
processing. See Madelaine G. v. Dep’t of State, EEOC Appeal No. 0120141877 (October 25,
2016).

The Agency now seeks reconsideration of our previous decision and order, claiming that the
Department of Justice, Drug Enforcement Agency (DEA), as Complainant’s employer, was solely
responsible for the assignment overseas and the terms of her employment. Moreover, for the first
time in its reconsideration request, the Agency asserts that it was not the “offending party” because
the DEA had the authority to override the Agency’s medical clearance decision.4 The question of
whether the Agency is the “offending party” has never before been questioned by the Agency. In
fact, by previously admitting liability in its final decision, such factual finding has been adjudicated
and/or waived.

Nonetheless, the Commission finds that its previous order should be modified. The Agency was
not Complainant’s employer and cannot unilaterally reinstate Complainant into the position she
previously held. As a result, the Commission will modify the prior relief ordered to reflect the
matters under which the Agency has control.

Accordingly, 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. Therefore, with the exception of the Order, the decision in
EEOC Appeal No. 0120141877 remains the Commission's decision. The Order is MODIFIED as
stated below. 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

3 We agreed with the Agency’s conclusion that it had not met its burden of establishing that
Complainant’s return to Kabul would have posed a direct threat. Accordingly, the DOS’s defense
to denying Complainant the Class 2 Medical Clearance was not established, and the Agency was
found liable under the Rehabilitation Act.

4 A federal employee or job applicant who believes a federal agency has discriminated against her,
has a right to file an EEO complaint with the offending agency, regardless of whether she is a
current employee or not. See 29 C.F.R. § 1614.106(a)); See also Gadson v. Treasury, EEOC
Appeal No. 01972092 (Jan. 27, 2000); Colantuoni v. Office of Personnel Management, EEOC
Appeal No. 01943039 (Sept. 14, 1995); Buchhagen v. Dep’t of Health and Human Serv., EEOC
Request No. 05940948 (June 3, 1996); and Pion v. Office of Personnel Management, EEOC
Request No. 05880891 (Oct. 18, 1988).

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The Agency is ordered to take the following remedial action:

1. Within 60 calendar days from the date this decision is issued, the Agency’s Office of
Medical Services shall conduct the required individualized assessment of Complainant's
medical condition and her ability to return to the Administrative Officer position at the
Embassy in Kabul without posing a significant risk of substantial harm to herself or others.
Within 30 calendar days of that assessment, the Agency shall inform the appropriate
officials at Complainant’s employer, the Department of Justice, Drug Enforcement
Agency, of Complainant’s eligibility to return to the Administrative Officer position at the
Embassy in Kabul or an assignment in Kabul substantially similar to the one she lost. If
Complainant subsequently rejects the Department of Justice’s offer of the assignment, the
Agency shall use the date of rejection for purposes of back pay calculations as noted below.
If Complainant accepts the assignment, the Agency shall use the date Complainant assumes
the assignment for purposes of back pay.

2. The issue of compensatory damages is REMANDED to the Agency. On remand, the
Agency shall conduct a supplemental investigation on compensatory damages, including
providing the Complainant an opportunity to submit evidence of pecuniary and non-
pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and
non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance:
Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of
1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation
and issue a final decision appealable to the EEOC determining the appropriate amount of
damages within 90 calendar days after this decision is issued and paying the determined
amount, if any, within 30 calendar days from the date of that determination.

3. The Agency shall determine if Complainant is entitled to an award of back pay as a result
of the denial of her return to her assignment in Kabul. The Agency shall communicate
with Complainant’s employer, the Department of Justice, Drug Enforcement Agency, and
determine the appropriate amount of back pay, with interest, and other benefits due
Complainant, pursuant to 29 C.F.R. § 1614.501, no later than 60 calendar days after the
date this decision is issued. The Complainant shall cooperate in the Agency's efforts to
compute the amount of back pay and benefits due, and shall provide all relevant
information requested by the Agency. We note that the Agency should consider if there
would have been a difference in locality pay and benefits to Complainant including but not
limited to promotions or other incentives for an assignment in Kabul, Afghanistan. If there
is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue
a check to the Complainant for the undisputed amount within 60 calendar days of the date
the Agency determines the amount it believes to be due. The Complainant may petition
for enforcement or clarification of the amount in dispute. The petition for clarification or
enforcement must be filed with the Compliance Officer, at the address referenced in the
statement entitled “Implementation of the Commission's Decision.”

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4. Within 60 days from the date this decision is issued, the Agency is ordered to provide 8
hours of in-person or interactive training to the responsible officials covering their
responsibilities under the Rehabilitation Act. The training shall cover the Agency's
obligations regarding the provision of reasonable accommodation, as well as its obligation
to conduct an individualized assessment pursuant to the direct threat defense.

5. If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501
(e)(l)(iii), she is entitled to an award of reasonable attorney's fees and costs incurred in the
processing of the complaint, including this appeal. 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 60 calendar days of the date this decision is issued.
The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R.
§ 1614.501.

POSTING ORDER (G0617)
The Agency is ordered to post at its Office of the Chief Information Officer (OCIO) in Fort Collins,
Colorado 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)),
he 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.
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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 (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 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.

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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 21, 2018
Date