Margaret L.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Apr 5, 2018

0520160382 (E.E.O.C. Apr. 5, 2018)

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

Margaret L.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Request No. 0520160382

Appeal No. 0120130395

Agency No. NRCS-2011-00555

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120130395 (July 15, 2015). 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).

In the underlying complaint, Complainant alleged that she was discriminated against on the bases
of race (African-American) and age (41 years old) when on March 21, 2011, she was
constructively discharged. The Agency issued a decision (later amended) in which it concluded
that Complainant established that she was constructively discharged as alleged. The Agency
awarded Complainant placement in the position of Program Assistant, GS-0303-08, “or
equivalent,” along with back pay and damages, among other remedies.

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.
0520160382

2
In our previous decision, we found that the Agency had not provided any evidence that it had
issued a decision on compensatory damages, let alone granted Complainant relief sufficient to
remedy the discrimination suffered. Accordingly, we ordered the Agency to, inter alia, “Provide
supporting documentation verifying that Complainant was placed in the position of Program
Assistant (GS-0303-8) or equivalent.”

Following the issuance of EEOC Appeal No. 0120130395, the Commission opened up
compliance monitoring on our Order. The Agency submitted documentation sufficient to show
that it had complied with our Order in EEOC Appeal No. 0120130395. The Commission found
that the Agency had issued a decision on damages, specifically addressing Complainant’s
entitlement to compensation for past pecuniary, future pecuniary and non-pecuniary losses; and
restored all leave taken as a result of the discriminatory action. The Agency provided supporting
documentation verifying that: Complainant was placed in the position of Program Assistant (GS-
0303-8) or equivalent; the Supervisor, Director, and Director-SPPD attended training regarding
their obligations under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e
et seq.; appropriate disciplinary action was considered; Complainant was provided with payment
for attorney’s fees and costs; a notice was posted for 60 consecutive days, at the Agency’s
Beltsville, Maryland facility, stating that a violation of Title VII has been found; and it provided
evidence of any payments made to Complainant and documentation showing the Agency’s
calculations in determining the amounts paid.

In her request for reconsideration, Complainant seeks an order to be placed in the position of GS-
0303-9/11, rather than GS-0303-08. She argues that the Agency has not complied with its
decision regarding remedies, dated September 30, 2014, in which it stated that, “With regard to
reinstatement, we are persuaded by the Complainant’s request for a redetermination of her
position and grade level given that she has been performing the grade duties and responsibilities
of a GS-9/11 in her private contract position.” The record indicates that Complainant was a GS-
0303-08 at the time of the constructive discharge in 2011. Documents submitted by the Agency
in support of compliance with our order show that Complainant was placed in the position of
Program Support Assistant, GS-0303-08, effective May 5, 2013. We find that the Agency
complied with the Order in EEOC Appeal No. 0120130395 and placed Complainant in the
position she would have been absent the discrimination, namely the GS-0303-08 position.
Complainant does not present sufficient justification for the Commission to order an increase in
her grade level within the context of this complaint. If she believes she is performing at a higher
grade level than that to which she is currently assigned, there are other administrative avenues
which may be pursued to remedy the alleged discrepancy, such as a desk audit, or if she believes
the discrepancy is discriminatory in nature, a new EEO complaint.

Complainant also alleged that the Agency conducted a “realignment” or reorganization of the
office structure such that her position was effectively eliminated. We find that this allegation is
outside of the Order and issues considered in EEOC Appeal No. 0120130395, and Complainant
is advised that if she believes she has been discriminated or retaliated against with respect to the
realignment, she should contact an EEO Counselor and file a new complaint.

0520160382

3
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. The decision in EEOC Appeal No. 0120130395 remains the
Commission’s decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

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

April 5, 2018
Date