05A20096
06-25-2003
Pamela Merrill, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Education Activity), Agency.
Pamela Merrill v. Department of Defense
05A20096
June 25, 2003
.
Pamela Merrill,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Education Activity),
Agency.
Request No. 05A20096
Appeal No. 01984302
Agency Nos. AEFY9104;
AEFY9109
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of Defense (agency) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Pamela Merrill v. Department of Defense, EEOC Appeal
No. 01984302 (September 26, 2001). EEOC Regulations provide that the
Commission may, in its discretion, 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). However, we remind the agency that a �request
for reconsideration is not a second appeal to the Commission.� Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(rev. Nov. 9, 1999), at 9-17.
In its request for reconsideration, the agency contends that the
Commission's decision involved a clearly erroneous interpretation of
material facts and law, and that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
agency. The agency's principal arguments are as follows:
contrary to the Commission's finding, the agency did not remove one
of job responsibilities; rather it provided her with assistance to
accomplish this element;
the Commission must not substitute its judgment for that of the school
administrators who are the �experts on the dangers posed to children
in a school setting . . . ;� and
contrary to the Commission's finding, the agency conducted an
individualized assessment of the situation when it sought a medical
evaluation and advice.
This Commission carefully considered all of the record evidence at the
time it rendered the initial decision in question, and the agency has
offered no persuasive reason why this decision should be reconsidered now.
Therefore, after a review of the agency's request for reconsideration,
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), and
it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01984302 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of the
Commission on this request for reconsideration. The Commission directs
the agency to take corrective action in accordance with this decision
and the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Consistent with the foregoing decision, the agency shall not assign
an aide to complainant's classroom for safety reasons without first
conducting an individualized assessment that establishes that there is
a significant risk of substantial harm if complainant performs her job
without the assistance of an aide.
2. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the Attorney's Fees paragraph set forth below.
No later than sixty (60) days after the agency's receipt of the
attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
3. The agency will provide eight (8) hours of EEO training within the
next four months, with an emphasis on the Rehabilitation Act for all
officials involved.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commissions'
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and
other benefits due complainant, including evidence that the corrective
action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Alconbury Elementary School (AES)
in England 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 (H0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (P0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 25, 2003
__________________
Date