Michelina C.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency.

Equal Employment Opportunity Commission

Apr 5, 2016

0520160045 (E.E.O.C. Apr. 5, 2016)

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

Michelina C.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Defense Threat Reduction Agency),
Agency.

Request No. 0520160045

Appeal No. 0720140009

Hearing No. 570-2010-00320X

Agency No. DTRA-09-007

DECISION ON REQUEST FOR RECONSIDERATION

Both Complainant and the Agency requested reconsideration of the decision in
v. Department of Defense, EEOC Appeal No. 0720140009 (September 22, 2015). 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 filed a formal complaint alleging discrimination and
harassment based on sex, disability, and in reprisal for prior protected activity. The Agency
framed the events comprising the harassment claim as follows:

1. On June 8, 2009, Complainant's supervisor denied her request to change her duty
hours;
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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2. On May 31, 2009, Complainant's supervisor presented her with an interim performance
review that contained negative ratings due to her inability to travel by air;

3. On May 20, 2009, Complainant was issued a formal letter of reprimand for insolence
and discourteous behavior;

4. On May 7, 2009, she was denied participation in a physical training session;

5. On April 24, 2009, Complainant's supervisor issued her a memorandum of counseling
for violating a Letter of Requirement for her use of leave;

6. On or about February 2009, Complainant's supervisor denied her leave request;

7. On or about November 2008, Complainant's supervisor issued a performance appraisal
downgrading her rating.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant’s requested a hearing. The
AJ held a five-day hearing. On September 27, 2013, the AJ issued a decision finding
discrimination with regard to claims (1), (2), (3), (4), (5), and (7). The AJ also found
Complainant was subjected to a work environment “permeated” with discrimination due to
sex, disability, and prior EEO activity. The AJ found no discrimination with regard to claim
(6).

As a result of the findings of discrimination, the AJ awarded Complainant damages and
attorney’s fees and costs. Specifically, the Agency was ordered to pay Complainant $25,000
in nonpecuniary damages; $25,216.509 in past pecuniary damages; attorney’s fees of $98,084
(between three attorneys); and costs of $3,383.65. Also, the Agency was required to calculate
back pay plus interest for the period of September 1, 2009, to June 17, 2013.

On November 15, 2013, the Agency issued a final order and filed an appeal with the
Commission. In its final order, the Agency rejected the AJ’s finding of discrimination and
order of relief and dismissed the complaint in its entirely.

On appeal, the Agency argued that the AJ erred in failing to dismiss the complaint prior to the
hearing. First, it argued that the issues in the EEO complaint are identical to Complainant’s
appeal to the Merit Systems Protection Board (MSPB) regarding her removal. According to
the Agency, Complainant argued before the MSPB that discrimination based on her sex,
disability. and prior EEO activity contributed to her removal. On October 6, 2010, the MSPB
issued an Initial Decision sustaining Complainant's removal. Complainant appealed to the full
board, which affirmed the Initial Decision on January 6, 2012. Finally, Complainant appealed
the Board decision to the Commission. The Commission, in EEOC Petition No. 0320120023

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(Jan. 11, 2013) affirmed the Board's finding that Complainant failed to prove discrimination.
The Agency claimed that the arguments Complainant presented previously to the Board and
Commission were “inextricably intertwined” with each argument and claim raised on appeal.
Additionally, the Agency argued that dismissal was proper because Complainant had filed a
civil action in U.S. District Court for the Eastern District of Virginia. The Agency claimed
that the February 7, 2013 filing concerned the earlier MSPB appeal which it asserted was
identical to the appeal.

Complainant filed an appeal with the Commission following her receipt of the Agency’s final
order. Complainant challenged the Agency’s dismissal of her complaint and also requested an
increase in the compensatory damages awarded by the AJ.

In the previous decision, the Commission noted the AJ considered the Agency’s arguments
prior to issuing her decision. In March 2013, the AJ issued a “Notice of Intent to Dismiss,”
specifically identifying Complainant’s February 7, 2013 civil action filed in the U.S. District
Court for the Eastern District of Virginia (No. 1:13cv171). Both parties were given the
opportunity to submit responses to the Notice and did so.

The AJ concluded, and the Commission agreed, that the amended civil action only referred to
the matters raised within the MSPB (i.e., the termination). The Commission found the civil
action and the EEO complaint were not the same. The Commission determined the AJ
properly rescinded her Notice and issued a decision on the merits of Complainant’s EEO
complaint.

The Commission determined the AJ’s findings of discrimination and harassment were
supported by substantial evidence. The Commission noted that on appeal, the Agency only
argued that the complaint should have been dismissed. It did not provide any arguments nor
evidence that the AJ’s decision, with respect to the findings of discrimination, were clearly
erroneous. Thus, the Commission found no reason to disturb the AJ’s findings.

Additionally, the Commission noted that on appeal the Agency did not dispute the remedies,
damages, or attorney’s fees and costs awarded by the AJ. The Commission found that based
on a review of the record, there was no reason to disturb the AJ’s award.

In the present request for reconsideration, Complainant states in its prior decision the
Commission found discrimination but failed to include an order on remand for payment of
attorney’s fees and costs incurred in the appeal. Complainant contends she was a prevailing
party in her appeal and thus, entitled to reasonable attorney’s fees and costs for pursuing her
appeal.

In its request for reconsideration, the Agency argues the Commission should reverse the AJ’s
award of back pay from September 1, 2009, until June 17, 2013, because a United States
District Court Judge ruled in 2014 that Complainant’s removal from federal service was not
discriminatory. Alternatively, the Agency requests that the Commission disallow the

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calculation of back pay subsequent to Complainant’s lawful removal from federal service on
June 11, 2010. The Agency argues that the District Court opinion was not available when it
issued its final order or filed its brief in support of appeal.

We find that the Commission inadvertently failed to include Complainant’s rights to attorney’s
fees and costs for her successful appeal from the Agency’s final order. Further, we note that
as Complainant was represented by legal counsel in her request for reconsideration, she is also
entitled to attorney’s fees and costs for the successful prosecution of her request for
reconsideration.

After reviewing the previous decision and the entire record, the Commission finds that the
Agency’s 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. At the outset, we note that while the District Court’s
opinion had not yet been issued at the time the Agency issued its final order and filed its appeal
to the Commission, the Agency was aware of and argued in its appeal that the issues raised in
Complainant’s District Court case were the same issues raised in Complainant’s EEO
complaint. In its request for reconsideration, the Agency argues that the Commission back pay
order should be rescinded or modified. We note that when the Agency issued its final order
and initial appeal to the Commission, it did not challenge the relief ordered by the AJ. As the
Agency did not raise a challenge to the relief ordered in its final order or initial appeal to the
Commission, we find the Agency is precluded from challenging the relief ordered in its. We
emphasize that a request for reconsideration is not a second appeal to the Commission.

CONCLUSION

The Commission finds the Agency’s request does not meet the criteria of 29 C.F.R.
§1614.405(c), and it is denied. The decision of the Commission in EEOC Appeal No.
0720140009 is slightly MODIFIED to include the Order of Attorney’s Fees inadverntenly
excluded from the prior decision. There is no further right of administrative appeal on the
decision of the Commission on a Request to Reconsider.

ORDER

To the extent it has not already done so, the Agency is ordered, within 60 calendar days of the
date this decision becomes final, to implement the following remedial and corrective actions:

1. The Agency shall expunge and replace Complainant's November 2008 Annual
Performance Appraisal with an appraisal reflecting a score of no less than 3.0 on
Objective 2 and re-calculate and pay Complainant no less than two pay pool shares.
The Agency shall expunge any and all records of the performance appraisal found to be
discriminatory.

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2. The Agency shall expunge his records of the May 31, 2009 Interim Performance
Review found to be discriminatory and replace it with language reflecting a satisfactory
interim rating on all objectives.

3. The Agency shall expunge from its records the Memorandum of Counseling dated April
24, 2009.

4. The Agency will pay Complainant non-pecuniary damages of $25,000.

5. The Agency will pay Complainant $25,216.50 in past pecuniary (medical expenses)
damages.

6. The Agency shall expunge and replaced the Letter of Reprimand with a Letter of
Warning retroactive to May 20, 2009. The Agency will follow its usual and customary
policy regarding removal of a Letter of Warning from Complainant's personnel files.

7. The Agency will pay Complainant's reasonable attorney's fees of the following: Tully
Rinckney - $18,022.50; Silverberg/Stein $67,079.00; Aramony/Moore $12,982.50;
costs of $3,383.65.

8. The Agency shall determine the appropriate amount of back pay, plus interest and other
benefits due Complainant pursuant to 29 C.F.R. § 1614.501 and 5 C.F.R. § 550.805,
for the period September 1, 2009 to June 17, 2013. Complainant shall cooperate with
the Agency's efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the Agency. If mere is a dispute
regarding the exact amount of back pay, the Agency shall issue a check to Complainant
for the undisputed amount within 30 days of the date this Decision becomes final.
Complainant may contest the Agency's back pay award in accordance with the appellate
procedures outlined in the Notice of Rights that will accompany the Agency's final
order.

9. The Agency shall calculate and restore annual and sick leave taken as a result of the
discrimination set forth in this decision.

10. The Agency will require the responsible management officials to take eight hours of
training in the provisions of Title VII of the Civil Rights Act and the Rehabilitation
Act, with an emphasis on anti-retaliation provisions, gender, and disability
discrimination.

11. The Agency shall afford Complainant an opportunity to submit a petition for attorney’s
fees and costs to the Agency for work done by her attorney(s) in the processing of her
appeal to the Commission. The Agency shall then process the claim for attorney's fees
in accordance with 29 C.F.R. § 1614.501.

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POSTING ORDER (G0914)

The Agency is ordered to post at its Washington, D.C. 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.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he/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 this decision becoming final. 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 (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.

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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. 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, 2016
Date