[Redacted], Harriet J., 1 Complainant,v.Al Stewart, Acting Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Mar 5, 2021

Appeal No. 2019000499 (E.E.O.C. Mar. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harriet J.,1 Complainant, v. Al Stewart, Acting Secretary, Department of Labor, Agency. Request No. 2021000006 Appeal No. 2019000499 Agency No. CRC-17-11-109 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019000499 (August 12, 2020). 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). On October 11, 2016, Complainant began working as a Probationary Program Specialist, GS- 0301-11, at the Agency’s Office of Special Programs and Emergency Preparedness in Washington, District of Columbia. On May 26, 2017, the Agency removed Complainant from employment. On August 18, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), disability (progressive cervical neck and spinal injury), age (58), and reprisal for prior protected EEO activity (1997 EEO complaint against the District of Columbia 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. 2021000006 2 and 2016 allegations against Agency that it allowed unlawful disclosure of Complainant’s confidential medical information on several occasions) when: (1) a manager pre-signed and predated a performance evaluation for Complainant, (2) Human Resources failed to respond to Complainant’s request for accommodation, (3) management failed to provide appropriate training for Complainant and allowed a coworker to bully her, (4) management disclosed Complainant’s confidential medical information and a coworker taunted her about her medical conditions, (5) management made improper statements during a meeting, (6) coworkers sent Complainant emails making inappropriate comments about a photograph of a manager, (7) - (14) management made improper comments about Complainant on various occasions, (15) management included untrue statements in Complainant’s removal letter and did not give her a fair chance in the position before removing her, and (16) management gave negative employment references about Complainant. The Agency accepted Complainant’s EEO complaint for investigation, and following an investigation and at Complainant’s request, it issued a final agency decision on the matter. The Agency found discrimination as to denial of reasonable accommodation but found no discrimination on the remaining claims of disparate treatment and hostile work environment harassment. Complainant filed an appeal with this Commission, which was docketed as EEOC Appeal No. 2019000499. In the decision for 2019000499, the Commission affirmed the Agency’s finding of discrimination as to claim (2), denial of reasonable accommodation, and the Agency’s finding of no discrimination as to the remaining claims of disparate treatment and harassment. Among other things, the appellate decision concluded that the evidence showed the alleged adverse actions were the result of Complainant’s performance deficiencies and, as a result, her employment was terminated while she was within her probationary. The Commission ordered remedial relief as to claim (2). The instant request for reconsideration from Complainant followed. 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. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. The decision in EEOC Appeal No. 2021000006 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Order from our appellate decision is reiterated below. 2021000006 3 ORDER In affirmance of the Agency's finding regarding violation of the Rehabilitation Act of 1973, and to ensure compliance, the following relief is hereby ordered to be granted to Complainant: 1. No later than sixty (60) calendar days from the date of this decision, Complainant may submit to the Director, Civil Rights Center, objective evidence to support her claim for compensatory damages, if any.2 Such evidence may establish that she, in fact, suffered pecuniary and non-pecuniary losses and that there is a causal relationship between the discriminatory act found in this complaint and any such losses. Under section 102 of the Civil Rights Act of 1991, compensatory damages may be awarded for pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. A separate ruling determining appropriate relief, if any, will be forthcoming. 2. No later than sixty (60) calendar days from the date of this decision, Complainant may submit to the Director, Civil Rights Center, objective evidence to support her claim for attorney's fees and/or costs attendant to the processing of that part of the complaint where discrimination was found. 3. If Complainant submits evidence in support of her claim for compensatory damages, attorney's fees, and/or costs attendant to the processing of this complaint, then a copy shall be furnished to Agency counsel in the Office of the Solicitor (SOL). Agency counsel shall have fifteen (15) calendar days upon receipt of the evidence to submit a response. Complainant shall have fifteen (15) calendar days to review and reply to the Agency's response. 4. No later than thirty (30) calendar days from the date of this decision, and in accordance with 29 C.F.R. §1614.501(a)(l), the Agency shall notify all employees working in the Employment and Training Administration, Washington, D.C., of their right to be free of unlawful conduct under the Rehabilitation Act. The attached posting notice shall be used for this purpose. The posting notice shall be signed by the Agency Head, or an Agency representative duly authorized, in writing, by the Agency Head. It shall be displayed for sixty (60) calendar days. The posting is to be posted in conspicuous places, including all places where notices to employees are customarily posted. The Agency must take reasonable steps to ensure that the postings are not altered, defaced, or covered by any other material; 2 This footnote is labeled as “7” in our appellate decision. “We note that since the agency never even processed her reasonable accommodation request, it cannot show it acted in good faith in its attempt to accommodate her, therefore, compensatory damages are warranted.” 2021000006 4 5. No later than sixty (60) calendar days from the date of this decision, the Agency shall take corrective, curative and preventive action to ensure that violations of the Rehabilitation Act do not recur, including but not limited to, training for responsible management officials, and Human Resources employees in the Employment and Training Administration to inform them of their responsibilities and obligations regarding the Rehabilitation Act, including the duty to promptly respond to all reasonable accommodation requests. 6. No later than sixty calendar (60) days from the date of this decision, and in accordance with 29 C.F.R. §1614.102(a)(6), the Agency shall consider taking appropriate disciplinary action against the responsible management official(s)/employee(s) in this complaint. The EEOC does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission's Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure date(s). 7. No later than thirty calendar (30) days from the date that the above corrective actions have been taken, the Agency and Workplace Equality Compliance Office are further directed to submit a Compliance Report to the Commission's Compliance Officer. The Report shall include supporting documentation verifying that the corrective actions described above have been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Employment and Training Administration facility in Washington, DC 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). 2021000006 5 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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. 2021000006 6 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 March 5, 2021 Date