0720100030
03-11-2011
Nelly V. Leap, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.
Nelly V. Leap,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0720100030
Agency No. 07-0024-BPA and 07-0081-BPA
DISMISSAL OF APPEAL
On February 12, 2010, the Agency filed an appeal with the Commission,
in the form of its supporting brief, in which it notified the Commission
that it was rejecting part of the December 15, 2009, decision of an
EEOC Administrative Judge's (AJ) finding of discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review,
we determine that the both the Agency's final order and its appeal were
untimely; the appeal therefore is DISMISSED.
On January 11, 2007, and August 7, 2007, Complainant filed EEO complaints
alleging that the Agency discriminated against her on the bases of
national origin (Bulgarian), sex (female), age (55), and reprisal for
prior protected EEO activity when: 1) between October 16, 2006, and
April 12, 2007, her supervisor treated her differently from coworkers
by assigning her duties and projects to younger, non-Bulgarian male
coworkers; and 2) between May 29 2007, and September 4, 2007, her
supervisor treated her differently than coworkers by issuing her a
lower-than-deserved rating on her mid-year performance review and a
counseling memorandum.
Following a hearing held April 20, 21, and May 5, 2009, the EEOC
Administrative Judge (AJ) issued a decision on December 16, 2009, finding
that the Agency had discriminated against Complainant based on national
origin, sex, age, and reprisal for EEO activity. With respect to remedies,
the AJ awarded Complainant, among other things, $20,000 in non-pecuniary
compensatory damages. Subsequently, on February 12, 2010, the Agency
filed the instant appeal in the form of its supporting brief. Thereafter,
the Agency issued its final order dated February 19, 2010.
On appeal, the Agency argues that the AJ's award of $20,000 in
non-pecuniary damages is excessive. The Agency argues that, based on
similar cases, Complainant's compensatory damage award should be reduced
to $10,000. Complainant argues in reply that the Agency failed to issue
its final order within 40 days of receipt of the AJ's decision; as such,
the Agency's appeal should be dismissed. Complainant argues that the
AJ's decision became the Agency's final order, entitling her to $20,000
in compensatory damages.
Pursuant to 29 C.F.R. � 1614.110(a), an agency is required to take
final action on a complaint by issuing a final order within 40 days of
receipt of the hearing file and the AJ's decision. If an agency decides
not to fully implement the decision of an AJ, the agency must issue a
final order and simultaneously file an appeal with the Commission in
accordance with 29 C.F.R.
� 1614.403. Id. If the agency does not issue a final order and file an
appeal simultaneously with the issuance of the order, the AJ's decision
will be deemed ratified by the agency upon the expiration of the agency's
40-day period for accepting or not accepting the AJ's decision. See 29
C.F.R. � 1614.109(i); Equal Employment Opportunity Commission Management
Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 9, � III(B)(1)
n.4 (Nov. 9, 1999).
In the instant matter, we find that the Agency failed to comply with the
above regulations when it did not file its appeal with the Commission in
a timely manner. There is no dispute that the Agency received the AJ's
decision on December 21, 2009. Thus, the Agency's final order should
have been issued, and its appeal should have been filed by February 1,
2010. Even if we were to consider the Agency's appeal brief, as its
properly filed notice of appeal, the appeal brief was filed on February
12, 2010, which is outside of the 40-day period set forth at 29 C.F.R. �
1614.110(a).
We find that the Agency failed to take final action during the 40-day
period set forth in the Commission's regulations at 29 C.F.R. �
1614.110(a). Accordingly, the AJ's decision became the final action of
the Agency. See McCue v. U.S. Postal Serv., EEOC Appeal No. 01A13411
(Aug. 8, 2002). Further, because the Agency's failure to timely file its
appeal constituted a failure to take action during the 40-day period,
the Agency cannot now challenge any aspect of the AJ's decision. Id.
ORDER
To the extent that it has not already taken the remedial action set
forth in the Administrative Judge's December 16, 2009, decision, the
Agency is ORDERED to proceed as follows:
A. Ensure that Complainant does not work in Supervisor JC's chain of
command.
B. Ensure that future DSEI and CVR assignments are made by someone
other than Supervisor JC and are not based on national origin, sex, age,
or retaliation for EEO activity.
C. The Agency shall pay Complainant all costs to which she may be entitled
under Federal law in connection with this complaint. 28 U.S.C. � 1920,
29 C.F.R. � 1614.501. (This involves copying and travel costs for
Title VII violations.) The Agency shall pay Complainant's reasonable
attorney's fees. (See the below-entitled paragraph, "Attorney's Fees.")
D. The Agency shall take no retaliatory action against Complainant for
having filed and prosecuted this discrimination complaint.
E. The Agency shall pay compensatory damages as follows:
1. Pecuniary: none. Complainant did not provide proof of any
out-of-pocket expenses or receipts.
2. Non-pecuniary: Taking all the evidence into consideration it
is ordered that Complainant is awarded and the Agency shall pay
complainant Twenty-thousand and 00/100 dollars ($20,000.00) for
compensatory damages.
F. The Agency shall insure that in the future Complainant and all other
female engineers over 40 years of age from other countries working at
the BPA are not subjected to the same, similar or any acts of national
origin, gender, age, and reprisal discrimination.
G. The Agency shall conduct EEO training for managers, supervisors, and
employees in the BPA's engineering section to insure that they become
aware, and continue to be aware of, their obligations, responsibilities,
and rights under EEO, including the rights to work in an environment
free from national origin, gender, age, and reprisal discrimination and
to use the EEO process to remedy perceived violations of EEO laws.
H. The Agency shall post a notice of the finding of discrimination.
(See below-entitled paragraph, "Posting Order.")
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 (G0610)
The Agency is ordered to post at its Bonneville Power Administration
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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R.
� 1614.501(e)(1)(iii)), 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See
29 C.F.R. � 1614.604. The request or opposition must also include proof
of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
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 (Z0610)
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
March 11, 2011
Date
2
0720100030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720100030